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EYEWITNESS IDENTIFICATION*

By Major Francis Gilligan"

I. ISTRODUCTION

Prior to the landmark trilogy of Wade-Gilbert-Storall,' eyewitness identification had been a neglected are& of criminal law even though identification evidence, of all the classes of evidence, was probably the least to be relied upon.* The English? and American annals are replete with many instances of mistaken identification by eyewitnesses and the unreliability of eyewitness identification has been scientifically demonstrated.m Despite this. juries attach a great deai of weight to eyewitness identificatim8 In his study of eyewitness identifications, Professor Barchard concluded that the majar source of error is an identification of the accused or suspect by the victim of a crime of violence: This is especially true when the victim is a child or young person.' In such cases the emotional state of the witness or victim may nuilify refiection and render vain all attempts to re-call the past. The victim or witness may desire to seek vengeance

"The opinions and conc1~siona presented herein are those of the author and do not neeeaaariiy represent the views of The Judge Advaeste General's School or any governmental agency.

**JAGC. U.S. Army; Instructor, Criminal Law Division. TJAGSA. B.A.. 1961, Alfred University: J.D., 1964, State University of New York at Buffalo; LL.M., 1970, George Washington Uniiersity: member of the bars of the Court of Appeals of Sew York State, Emted States Supreme Court, an! the US. Court of Military Appeals.

L-mted States U. Wade. 388 U.S. 213 (1567); Gilbert L. Cairfarnla, 388 U.S. 268 (19671: Stavall 2.. Denno, 338 V.S 293 (1967).

'W~llmms & Hammelmann. ldentifiedton Puvdes, PmL I, 1963 GRIM L. REV. 479, 480 [hereafter cited BI Williams & Hammelmann].

"See G. W~L~lams, THE PROOX OF Gm~r,

106-24 (3d ed. 1963); Wiliiami & Hammelmann, Parts I and 11, 475, 546.

'See gen~rally F. BLOCK, THE VIh-DICimRS (1963). E. BORCHUID, Cor. ~~CT~TO

THE IFXOCETT 11932): J. €RAM & B. FRanx, Nm GUILTY 11951): E. GIRDXER. THE Covnr OF LAST RESORT (1052).'See semdlu A. AYASTASI, FIELDS OF APPL~ED

648-50

( I S M ) i F. BERREX. PRICIICAL PSYCHOLOCI 416-44 (rev. ed. 1952), H BLEW, A ~ m m

PSYCHOLOD-I

232-65 12d ed. 1957); F RUCH, PSICBULUOY

AND L m 291 (5th ed. 1958).

'See E. BURCHARD, CDhVlCTlnC THE ISXOCIZT XI11 11932); P. WALL, EIE-WIT~.ESS

IDENTIFICAT~ON

IW CRIMIN~L

CASES 41 (19661 ; Wliliam~ &

Hammelmann, Parts I and 11, at 430 and 545. 550

.See E. BORCHARD,

CU~YICTINC

E~IDEXCE

TO PROOF 19-20 119561. 3Willmms & Hammelmann, Part 11, at 545. 546.

PS~CHOLOGT

TEE IU~UCEIT XI11 (1932), xer ala0 &I.

BOLTS,

FROM

on the person believed guilty, or merely to support the Identificatian which he assumes, C O ~ S C ~ O U S ~ ~

or uncon~ciousIy, has alreadr been made by another.8 Even so, "juries seem disposed more readily to credit the reracity and reliability of the victims af an outrage than any amount of contrary eridence by or on behalf of the accused, whether by may of alibi. character wtnesdes, or

Once the witness har made his identification in it "by a process of autosuggestion vhict. evidences itself m a continuallr seeking means of justifying his opinion and reinforcing hia belief Questioned once more regard-~np. the matter. the chances are that he uould repeat. with even greater emphasir his previous declaration." I'

In addition to the unreliabilit) of e?ewitness identification. there are certain suggestions that are present at a lineup. Fore-moat. It sugaects that the accused must nece$sarilr be in the l1nellp

corroboration o2 the.r usp pic ion that tk,e police expect and ?eri"lre

His mmediare iraction n f he 13 not certaln may he to straln hls memar) to the utmost to find ? o m reremblance berueen ore oi the offender as he remembers him The uitneii ed to gick OOL ~omen~e,and that sameane of the garade who comes c!oselt to hli own ?a1 Diocrepar.rie~ may he eaiils overlooked or erpiained auai '

Suggestions other than differences of height, weight. age, race. etc., may take the form of nonverbal communications 111 the lmeup The use of police officers may be suggestive because of thew bearing and attitude which cannot easil? be con altered. Furthermore, the attitude of the police part

~~~

E. BORCHARD.

CoY\rc~ls(i THE I\\nCLIT XI11 (19121.

LIKEUPS

toward the accused may unwittingiy suggest the accused. The latter is 8180 true of nonpolice participants who know the identity of the accused." Other nonverbal suggestions mar be the sus-pect's emotional expressions because of the shame or anxiety of being confronted with the potential accusers.1a This anxiety mar affect his facial expression, posture or gait. The likelihood of intentional suggestions might also be present in a pretrial confrontation.'- Same law enforcement officials are not impartial. "[Wlithout making any claim to generaiizstion, it is common knowledge that the proeecuting technique in the United States le to regard a conviction as a personal victory calculated to enhance the prestige of the prosecutor.''

I1 WADE-GILBERT-STOVALL

In an attempt to avert prejudice and to insure adequate cross-examination thereby guaranteeing the right to a fair trial, the Supreme Court in Cnited States v. Wade held that an in-court identificatmn by a witness who identified the accused in the absence of counsel at a postindictment lineup conducted approximatelv eieht months after the crime In must be excluded unless

it can be established that such evidence was not tainted bv the pretrial identification or that its admission was harmless error. the Court dealt directly with the identification conducted in derogation of the accused's right, as well as with that of the subsequent in-court identification. The Court held the pretrial identification was absolutely inadmissible if It war "the direct result of the illegal lineup"': These rules applr to both state and federal prOsecutiQn? and affect only cases involving confrontations which occurred after dune 12, 1967."

In Stovnli v Denno,? the Court indicated that pretrial Identifications made prior to that date and those made after such date where counsel's prezence was not required might be challenged as violating dlre process of law In Sto?~aIl the Iiiegro accused was presented to the victim while handcuffed to B palice officer in a hospital room containing all white individuals, five police officers and two hospital attendants, one day after major burger? to sare the iictirn's life. The victim \>-as asked whether the accused "was the man." The Court stated that in determining whether there has been a denial of due proces~, the test to he applied iswhether judged h! the totality of the circumstances the conduct of the identification procedures was unnecesaarili- suggestii e and conducive to irreparable mistaken identification Appliing this test, the Court stated that there was no denial of due process since the necessity of getting the identification from the sole surviving witness outweighed the highlr suggestive circumstances

In Paste, i- Cnliiomo," the Supreme Court held that the h e - up procedures employed were unnecessarily suggestive and re-manded the case for further proceedings. There the police firit lined up the defendant with two shorter, heavier men. with onlv the defendant wearing clothes like thore worn in the holdup When that failed to produce an identification, the police arranged a face-to-face confrontation with the victim. When the victim wae still not ewe, police showed him the accused in a five-man lineup in which the accused was the only perion In the second I' had appeared in the first

388 U S 253 llY5il

The term "confrontation" as YQ~O

~n this comment deacnbe. a mfuif.oii arranged by the police rub5equenr to the elme in rhich the witness or rhe iietim observer the su5pec: or the accused for p"~p0ses of identiFcafion The iietim 01 intnesa ma>- OT may not Iden!ify the iu~peer or accured.

'-stovaii L nenna, 388 L- s 293 1106:i '* 394 LT S 440 (10681

LIXEUPS

The situation presented the trial judge in Foster on remand is similar to that facing the trial judge once the due process issue haa been raised.?. In determining whether a valid in-court identification may be made, a two-step procedure should be applied." First, a judge should determine as an interlocutory matter at an out-of-court session whether the particular pretrial identification was unnecessarily suggestive. If the judge makes such B determination, he should then determine whether the impermissibly suggestive pretrial identification gives rise to a "likelihood of irreparable mistaken identification." If both of these elements are found, the use of the in-court identification is prohibited. How-ever, where the pretrial identification is found to be unduly Buggestive but not conducive to a likelihood of irreparable mistaken identification, an in-court identification by the same witness is admissible if the prosecution can prove by clear and convincing evidence that the identification, rather than Stemming from the unduly suggestive confrontation, had an independent origin."*

As to the second step, the courts have not found that an impermissiblv suggestive pretrial identification gives rise to a "likelihood of irreparable mistaken identification" where external factors hare indicated that the pretrial identification was ac-curate.'0

The courts have been reluctant to find a showup unnecessarily suggestive when compelling circumstances dictated a showup," or efficient law enforcement and "fresh" identification required ~n on-scene The courts have held that there is a riolation of substantixw due process where there have been flanrant oretnal confrontations. For examde. in State t'. Goose?,". .

U.S. 440 (1969) (Black, J., disientmgl.

SI upan B finding of "a 'er) substantial cation." then the only question 18 whether the error 1x1 the case Y ~ S harmless. Id. at 446"United States 9. Smith, - C.H.R. -

(ACMR 1911); Faster Y

California, 394 U.S. 440 (1969): Cnited...