Identification procedures

• Pages: 263-304
• Author: Thomas J. Farrell,Brandon D. Minde

IDENTIFICATION

PROCEDURES

9-1

CHAPTER 9

IDENTIFICATION PROCEDURES

I. PRETRIAL

A. Procedures and Techniques

§9:01 General Points

§9:02 Types of Identification Procedures

§9:03 Constitutional Restrictions on Procedures

§9:04 Due Process Protection

§9:05 The Right to Counsel

§9:06 Counsel’s Function at the Line-Up

§9:07 Motions to Dictate Line-Up Procedures

B. Better Line -Ups

§9:10 General Points; Research Resources

§9:11 The “Double-Blind” Line-Up

§9:12 Instructions to the Witness

§9:13 The Blank Line-Up

§9:14 The Sequential Display

C. Defense-Requested Line-Ups

§9:20 General Points

§9:21 Court Discretion to Order Line-Up

§9:22 When to Request a Line-Up

§9:23 Including Another Suspect

II. TRIAL

A. The In-Court Show-Up

§9:30 General Points

§9:31 Moving for an Alternative

§9:32 Make Motion Before the Pre-Trial Hearing

B. Motion to Suppress Identification Testimony

§9:40 The Wade Hearing

§9:41 Benefits of a Hearing

§9:42 Examining the Officer at the Hearing

§9:43 Examining the Eyewitness at the Hearing

C. Witness Examination at Trial

§9:50 Attack Credibility

§9:51 Avoid Questioning About Certainty

§9:52 Be Cautious About Questioning About Duration

IDENTIFICATION

PROCEDURES

Criminal Defense Tools and Techniques 9-2

D. Expert Testimony at Trial

§9:60 Trend Is to Allow Court Discretion

§9:61 Develop Specific Basis for Misidentification

E. Jury Instructions

§9:70 Focus on Specific Factors

§9:71 Burden of Proof

§9:72 Witness Confidence

III. FORMS

Form 9-1 Motion for Double Blind Sequential Line-Up

Form 9-2.1 Motion to Suppress Pre-Trial and In-Court Identification

Form 9-2.2 Motion to Suppress Unduly Suggestive Show-Up Eyewitness Identifications

Form 9-3 Basic Jury Instruction

Form 9-4 Instruction Based on Cross Racial Identification

Form 9-5 Instruction Based on Inadequate Instructions During Line-Up

IDENTIFICATION

PROCEDURES

9-3 Identification Procedures §9:02

I. PRETRIAL

A. Procedures and Techniques

§9:01 General Points

Mistaken identication produces more wrongful convictions than any other cause. [See United States v. Wade, 388 U.S.

218, 228 (1967) (“The identication of strangers is proverbially untrustworthy,” (quoting J. Frankfurter, The Case of Sacco

and Vanzetti 30 (1927))); United States v. Smithers, 212 F.3d 306, 312 n.1 (6th Cir. 2000) (citing studies to the eect that half

of all wrongful convictions result from mistaken identications); www.innocenceproject.org/understand/Eyewitness-Mis-

identication.php (mistaken identication was a factor in more than 60% of DNA exonerations for wrongful convictions).]

Many researchers have published articles that can be helpful to the practitioner in the right case. Whether yours

is the right case depends on a number of factors, principally, the extent to which the prosecution case relies on

identication of your client by a stranger. [See generally National Research Council. 2014. Identifying the Culprit:

Assessing Eyewitness Identication. (Washington, DC: The National Academies Press 2014); Dennis v. Sec’y, PA

Dep’t of Corrections, 834 F.3d 263, 313-16, 321-332 (3d Cir. 2016) (McKee, C.J., concurring) (extensive review

of latest research on identication errors and procedures to improve reliability).]

A witness’s misidentication is rarely reviewable on appeal. Commentators and defense lawyers have been

hammering on this issue for nearly a century. Recently the legal system has shown openness to eective remedies

to misidentication. While there is no sign yet of a greater willingness to suppress identications reaped from

suggestive procedures, law enforcement has become more receptive to using fairer identication procedures, and

courts appear more willing to allow defense input into pre-trial identication procedures and to permit expert

testimony on the weaknesses of identication testimony.

One of the initial considerations in challenging an identication is to determine whether the identication at

issue is a selective identication, triggering due process protection, or a conrmatory identication. [Reyes v. State of

Maryland, 257 Md. App. 596, 617-18, 292 A.3d 416, 427-28 (2023) (explaining the dierences between a selective

identication, “when an eyewitness observes an unknown perpetrator commit a crime and then views suspects in

an eort to select and identify the perpetrator” after being presented with at least one suspect, and a conrmatory

identication, which is “typically an informal procedure that relies upon a witness’s prior familiarity with a suspect”)].

§9:02 Types of Identification Procedures

The Show-Up

The show-up has long been considered the most suggestive form of identication procedure. [See Stovall v.

Denno, 388 U.S. 293, 301 (1967) (show-ups “widely condemned”).]

In a show-up, the police confront the witness one-on-one with the suspect to determine if the witness can

identify the suspect as the perpetrator. Police employ this method when they make an arrest, usually soon after

the crime, and need to decide whether to continue to hold the suspect or to look further. While many courts have

widely condemned one-person show-ups, they are permissible in certain emergent situations, such as “to avoid

the mistaken apprehension of the wrong person” immediately after the oense has been committed. [Id. at 302.]

PRACTICE TIP:

When confronted with a show-up, be prepared to argue the absence of any exigent circumstances made

the procedure impermissibly suggestive.

The Photo Array

Displays of photographs can occur in dierent ways.

The police may:

• Have the witness look through a book of arrest photographs (i.e., “mug shots”).

• Arrange the photographs similar to a line-up, trying to select photographs that resemble each other to

avoid suggestiveness.

The Line-Up

The police may have several individuals, usually ve or six, sit or stand next to each other and have the witness

look at them, usually through a one-way mirror.