GOVERNMENT

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Outline pretrial suspect identification techniques. � Explain the problem of witness misidentification. � Summarize identification techniques during the trial and issues involving witness credibility. � Explain how the exclusionary rule operates in the identification context.

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CHAPTER OUTLINE

Identification Procedures and the Role of Witnesses

C H

A P

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OUTLINE

Introduction: Dealing with Witnesses to Crimes

Constitutional Restrictions on Identification Procedures

Right to Counsel Due Process Self-Incrimination The Fourth Amendment

Pretrial Identification Techniques Lineups

Steps to Minimize Suggestiveness Showups

In-Court Showups Photographic Identifications

Identification Procedures: flaws and fixes Double-Blind Lineups Virtual Officer Lineups

Identification during Trial Forms of Questions Refreshing a Witness’s Memory Witness Credibility

Impeachment Rehabilitation

The Exclusionary Rule and Identifications Tainted Identifications Identifications Resulting from Illegal

Searches and Seizures Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Dealing with Witnesses to Crimes

Identification procedures include those systems and activities that allow witnesses of crimes to identify suspected perpetrators. The three most common types of identification procedures are lineups, showups, and photographic arrays. In a lineup, the suspect is placed alongside several other people (sometimes called “fillers,” “foils,” or “distractors”) who resemble him or her, and the witness (or victim) picks the suspect out of the lineup. The fillers may be jail inmates, actors, or volunteers. In a showup, the suspect is brought before the witness alone, so the witness can be asked whether that person is the perpetrator. Finally, in a photographic array (or photographic display), several photographs, including one of the suspect, are shown to a witness or victim, and he or she is asked to pick out the perpetrator.

Identification procedures fall into two broad categories: (1) out of court and (2) in court. The three identification procedures just described—lineups, showups, and

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278 Part 3 • Interrogations, Confessions, and Identification Procedures

United States v. Wade (388 U.S. 218 [1967])

photographic arrays—occur out of court and prior to trial. There are, however, many occasions in which the prosecution may wish to have a witness identify the suspect in court and during trial. Of course, not all witnesses recollect accurately and/or can be trusted with regard to a suspect’s identification. It is therefore important to consider the witness examination process with an eye toward witness identification.

Naturally, it is in the prosecution’s interest to introduce evidence that a witness or victim picked the perpetrator out of a lineup. However, it is not as simple as demonstrating that a witness identified the perpetrator. The identification procedure must be fair as well as conform to constitutional requirements. Those constitutional requirements place restrictions on what officials can do in terms of arranging lineups, showups, and photographic arrays. And these restrictions are critical because witnesses to crimes are frequently inaccurate in their descriptions.

Accordingly, this chapter begins with a discussion of the constitutional restrictions that govern the identification process. Next, out-of-court identification procedures are considered followed by in-court identification procedures and the witness examination process. The chapter concludes with a look at the role of the exclusionary rule as it applies to in-court and out-of-court identification procedures.

CONSTITUTIONAL RESTRICTIONS ON IDENTIFICATION PROCEDURES

Identification procedures have been challenged on several grounds, stemming from the Fourteenth Amendment’s due process clause, the Fifth Amendment’s self-incrimina- tion clause, and the Sixth Amendment’s right to counsel clause. People have also chal- lenged the constitutionality of identification procedures on Fourth Amendment grounds.

Right to Counsel

In United States v. Wade (388 U.S. 218 [1967]), a defendant was placed in a police lineup, without his attorney present, after he had been indicted for a crime. The Supreme Court held that this violated the Sixth Amendment because a postindictment lineup is a “critical stage” in the criminal process. Further, “the presence of counsel [at postin- dictment lineups] is necessary to preserve the defendant’s basic right to a fair trial” (p. 227). Indeed, the right to counsel extends well beyond the identification stage (see Chapter 11).

The key in Wade was that the lineup was postindictment—that is, conducted after charges had been filed. Had charges not been filed, a different decision would have probably resulted. Another important feature of the Wade decision was that it distin- guished lineups from “various other preparatory steps, such as systematized or scien- tific analyzing of the accused’s fingerprints, blood sample, clothing, hair and the like” (p. 227). Counsel is not required for these types of activities because

[k]nowledge of the techniques of science and technology is sufficiently avail- able, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. (pp. 227–228)

Recently, the Supreme Court has extended the Sixth Amendment right to counsel to include other hearings, such as preliminary hearings and arraignments (see, e.g., Kirby v. Illinois, 406 U.S. 682 [1972]).

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Chapter 9 • Identification Procedures and the Role of Witnesses 279

Manson v. Braithwaite (432 U.S. 98 [1977])

Stovall v. Denno (388 U.S. 293 [1967])

Due Process

The Supreme Court has also clearly stated that the Fourteenth Amendment’s due process clause bears on the constitutionality of identification procedures. For example, in Stovall v. Denno (388 U.S. 293 [1967]), the Court held that the accused is entitled to protection against procedures “so unnecessarily suggestive and conducive to irrepara- ble mistaken identification” (p. 293) as to amount to a due process violation. In general, for an identification procedure to satisfy the due process clause, it must be (1) reliable and (2) minimally suggestive.

Whether an identification procedure is reliable is determined in light of the facts and circumstances surrounding the case. The following factors are used in determining whether an identification procedure is reliable:

The opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior descrip- tion of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers, 409 U.S. 188 [1972], p. 199)

Indeed, the Court stated in Biggers that reliability is more important than suggestiveness. In the Court’s words, it is “the likelihood of misidentification which vio- lates a defendant’s right to due process” (p. 199). This position was reaffirmed in the case of Manson v. Braithwaite (432 U.S. 98 [1977]), where the Court held that the totality of circumstances determines whether an identification procedure is unreliable.

Suggestiveness has also been important in determining whether an identification procedure violates the due process clause. If the procedure is set up such that the witness or victim is almost guaranteed to pick the perpetrator, it is unnecessarily sug- gestive. If, for example, an offender is 6 feet tall and placed in a lineup with several others who are considerably shorter, then the procedure will be considered suggestive.

Self-Incrimination

The Fifth Amendment’s self-incrimination clause has been invoked with regard to identification procedures. In particular, some defendants have argued that being forced to participate in a lineup or photographic array is itself incriminating and, as such, violates the Fifth Amendment. However, in United States v. Wade, the Court held that the privilege against self-incrimination does not limit the use of identification procedures.1

DECISION-MAKING EXERCISE 9.1

Counsel during a Lineup

Sam Linde has been arrested and charged with burglarizing Paul’s Appliance Store. Authorities also suspect that Linde has burglarized several other appliance stores in the area, including John’s Appliance Store. Suppose the police want to place Linde

in a lineup for a witness who saw him leave John’s Appliance Store in the middle of the night. Must counsel be present? (You may recall a similar exercise from the previous chapter, which dealt with confessions, but here the issue is a lineup.)

1 Note that the Fifth Amendment would apply if a defendant in a lineup was forced to answer questions from the police or witnesses.

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280 Part 3 • Interrogations, Confessions, and Identification Procedures

Hayes v. Florida (470 U.S. 811 [1985])

Schmerber v. California (384 U.S. 757 [1966])

The reason the Court offered is that even though incriminating information can result from identification procedures, such evidence is physical or real as opposed to testimo- nial. In Wade, the Court decided on the constitutionality of an identification procedure, in which the accused was required to utter words that were presumably uttered by the perpetrator. The Court concluded that this type of identification procedure was valid because the defendant’s voice was used as an identifying characteristic, not as a means to get him to express his guilt. Thus, the Fifth Amendment does not apply to identification procedures.

The Fourth Amendment

Lastly, identification procedures have been challenged on Fourth Amendment grounds. Like the Fifth Amendment, the Fourth Amendment has yet to be successfully invoked with regard to identification procedures. According to the Supreme Court, no one enjoys a reasonable expectation of privacy in characteristics that are exposed to the public. For example, if an offender is viewed by a witness, the witness’s identification of the offender will be admissible in court, even though the identification is incriminating. The offender/defendant may argue that the act of being viewed by the witness is incriminating, but the courts consider this sort of knowing exposure as beyond consti- tutional protection.

One of the leading cases in this area is Schmerber v. California (384 U.S. 757 [1966]). There, a sample of the defendant’s blood was taken by a doctor in a hospital following the defendant’s arrest. The sample was used as evidence in the defendant’s trial for drunk-driving. The defendant argued that the blood sample was incriminating and should be excluded from trial. The Supreme Court disagreed:

Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest. (pp. 770–771)

Obviously, if the police want to seize a person so as to obtain fingerprints, a voice exemplar, or some other form of evidence, they are bound by Fourth Amendment restrictions. As noted elsewhere in this book, probable cause is required before the police can seize a person. Assuming a seizure is justified, however, then any real or physical evidence obtained by the arrestee will be admissible.

There is at least one exception to the Fourth Amendment’s probable cause require- ment as it pertains to identification procedures. In Hayes v. Florida (470 U.S. 811 [1985]), the Court stated:

There is . . . support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reason- able suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch. (p. 817)

However, if conducted in the home, such a seizure must be preceded by judicial authorization.

Summary. Only two constitutional provisions actually place restrictions on identification procedures: the Fourteenth Amendment’s due process clause and the

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Chapter 9 • Identification Procedures and the Role of Witnesses 281

Sixth Amendment’s right to counsel clause. The Fifth Amendment, while important to confession law, does not come into play when identification procedures are at issue. Similarly, the Fourth Amendment does not apply to identification procedures directly, but it does apply indirectly insofar as probable cause is required if law enforcement officials plan to seize somebody for the purpose of identifying him or her. See Figure 9.1 for a summary of these issues.

PRETRIAL IDENTIFICATION TECHNIQUES

As described earlier, there are three types of pretrial identification techniques: lineups, showups, and photographic arrays. Each of these identification procedures is described in a following section, with particular focus on how the constitutional restrictions already discussed apply to it.

Lineups

Suspects can be forced to participate in lineups because lineups exhibit physical charac- teristics, not testimonial evidence. Indeed, suspects placed in lineups can also be required to supply voice exemplars but solely for identification purposes, not as a confession. If a suspect refuses to participate in a lineup, he or she can be cited with contempt (Doss v. United States, 431 F.2d 601 [9th Cir. 1970]), and the prosecutor can comment at trial about the suspect’s refusal to cooperate (United States v. Parhms, 424 F.2d 152 [9th Cir. 1970]).

STEPS TO MINIMIZE SUGGESTIVENESS As noted earlier, the due process clause restricts identification procedures. In particular, an overly suggestive lineup violates due process. In United States v. Wade, the Supreme Court noted that a lineup becomes suggestive when, for instance,

all in the lineup but the suspect were known to the identifying witness, . . . the other participants in a lineup were grossly dissimilar in appearance to the suspect, . . . only the suspect was required to wear distinctive clothing

FIGURE 9.1 Summary of Constitutional Issues in Identification Procedures

• Fourth Amendment: The Fourth Amendment protects from an unlawful search or seizure conducted for the purpose of securing an identification. There is an excep- tion, however: A witness can identify a suspect who is wrongfully seized if the identification is sufficiently independent of the illegal seizure.

• Fifth Amendment: Technically, the Fifth Amendment does not apply to identifica- tion procedures. This is true even if a suspect is asked to supply a voice exemplar, if this is done for the purpose of identification (and not a confession or admission).

• Sixth Amendment: The Sixth Amendment right to counsel exists in the context of making an identification but only in limited circumstances. First, the right to counsel only applies if formal adversarial charges have commenced. Second, a suspect in a photographic array does not enjoy Sixth Amendment protection, regardless of whether charges have been filed.

• Fourteenth Amendment: The Fourteenth Amendment’s due process clause always applies to identification procedures. In particular, if an identification procedure is too suggestive, it will violate the Fourteenth Amendment.

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282 Part 3 • Interrogations, Confessions, and Identification Procedures

which the culprit allegedly wore, . . . the suspect is pointed out before or during a lineup, and . . . the participants in the lineup are asked to try on an article of clothing which fits only the suspect. (p. 233)

The Project on Law Enforcement Policy and Rulemaking proposes several guide- lines for minimizing suggestiveness in a police lineup:

• The lineup should consist of at least five people, including the suspect. • The persons in the lineup should have similar physical characteristics. • The suspect should be permitted to choose his or her place in line. • Each person in the lineup should be required to take whatever specialized action

is required (e.g., to utter certain words). • The persons in the lineup should be warned to conduct themselves such that the

suspect does not stand out. • A lineup should be photographed or videotaped.2

The International Association of Chiefs of Police (IACP) Legal Center has recom- mended similar guidelines:

• A lineup should consist of five to six people. • Each participant in the lineup must sign the appropriate waiver form, unless his

or her counsel is present. • Everyone in the lineup should be of the same sex and race, approximately the

same age, and approximately the same height, weight, coloring, build, and so on. • Everyone in the lineup should wear approximately the same clothing. • The accused should be placed in the lineup at random, so as not to stand out. • Persons known to the witness should not be placed in the lineup. • Private citizens participating in the lineup (if insufficient numbers of prisoners

are available) should sign a written consent form indicating they are aware that no charges have been filed against them, that they are free to leave at any time, and so on.

• Each witness should view the lineup separately so one witness does not unduly influence another in his or her identification of the perpetrator.

• Each participant in the lineup should be given the same instructions and should perform the same acts (e.g., supply a voice exemplar).

• Participants in the lineup should be instructed not to make any statements or comments unless ordered to do so.

• Frontal and side-profile photographs of the lineup should be taken. • A single officer should oversee the lineup procedure. • A written waiver of counsel should be obtained if the suspect waives his or her

Sixth Amendment right to have counsel present at a postindictment lineup.3

An important restriction concerning lineups is that people cannot be indiscrimi- nately picked off the street for participation. If a person is not already in custody, the police must have reasonable suspicion that he or she has committed the crime in question (see Hayes v. Florida). However, if the person is in custody prior to the lineup, then he or she can be forced to stand in a lineup without any judicial authorization (see United States v. Anderson, 490 F.2d 785 [D.C. Cir. 1974]).

2 From Project on Law Enforcement Policy and Rulemaking, “Eyewitness Identification,” Model Rules for Law Enforcement (Tempe, AZ: Arizona State University, 1974). 3 International Association of Chiefs of Police, “Eyewitness Identification,” in Legal Points (Gaithersburg, MD: IACP Legal Center, 1975).

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Moore v. Illinois (434 U.S. 220 [1977])

Neil v. Biggers (409 U.S. 188 [1972])

Showups

A showup is a one-on-one victim/offender confrontation, usually conducted outside the courtroom setting. Specifically, a showup is usually held when the suspect has been apprehended shortly after having committed the crime and the witness is still at or near the scene of the crime. A lineup is always preferable to a showup (because a lineup consists of several potential suspects); however, a showup is necessary under certain circumstances.

For example, when a witness is immobile and cannot be present at a lineup, a showup is an effective alternative. In Stovall v. Denno, the Supreme Court noted, “Faced with the responsibility for identifying the attacker, with the need for immediate action and with the knowledge that [the victim] could not visit the jail, the police followed the only feasible procedure and took [the accused] to the hospital room” (p. 295). In a simi- lar vein, a showup is preferable when the suspect is immobile (see Jackson v. United States, 412 F.2d 149 [D.C. Cir. 1969]).

A showup is sometimes desirable to facilitate prompt identification when time is of the essence. If the witness is required to wait for a lineup, for instance, misidentifica- tion is more likely to result. A showup conducted more than 60 minutes after the crime, however, will usually not be upheld (see United States v. Perry, 449 F.2d 1026 [D.C. Cir. 1971]). But in at least one case, the Supreme Court upheld a stationhouse showup in which no emergency existed. In Neil v. Biggers (409 U.S. 188 [1972]), the Court sanc- tioned an arranged one-on-one showup, even though it took place well after the point at which the crime in question was committed. The Court noted, given the facts, that there was “no substantial likelihood of misidentification” (p. 201). This was because the witness had an opportunity to view the suspect for almost 30 minutes, under good lighting, prior to the showup.

The same constitutional provisions that govern lineups also govern showups. Specifically, the Sixth Amendment right to counsel applies but only after adversarial proceedings have commenced (see Moore v. Illinois, 434 U.S. 220 [1977]). Due process

DECISION-MAKING EXERCISE 9.2

Altering the Suspect’s Appearance

On December 24, the Toy Emporium was robbed. The sus- pect escaped before security guards and police could capture him, but store security cameras and several witnesses indi- cated that the crime was committed by a white male who was 6 feet, 3 inches tall, approximately 270 pounds, between 25 and 30 years of age, wearing a green trench coat, and having long hair. Two hours after the robbery, a man was

arrested in a nearby town because he fit the general description of the robber. However, he was bald and wearing a brown trench coat. A lineup was conducted, in which the suspect was required to wear a wig resembling the long hair of the perpetrator. He was positively identified by several witnesses. Does the act of requiring the suspect to alter his appearance conform to constitutional requirements?

DECISION-MAKING EXERCISE 9.3

What Constitutes a Valid Showup?

The police believe that Anna Delgado was involved in a hit-and-run car accident in which a man was killed. They do not have the reasonable suspicion required to seize Delgado for appearance in a lineup, but they do have a

witness to the accident. The police decide to take the wit- ness to Delgado’s place of work to make an identification. Delgado is identified at her place of employment. Is this type of showup valid?

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protections also exist. If the showup is unnecessarily suggestive under a totality of circumstances analysis, then any identification that comes from it will not be admissible in court.

IN-COURT SHOWUPS What happens when a witness identifies the accused for the first time in court? This has happened on occasion and is best described as an in-court showup. The key feature of an in-court showup is that the witness has not identified the suspect, either in a lineup or related procedure, prior to trial. How do the courts deal with this? The answer is important because an in-court identification is highly sugges- tive. Namely, the suspect has already been identified by virtue of having been charged with the crime.

The leading case dealing with in-court showups is Moore v. Illinois, although the focus of the case was on the preliminary hearing, not the trial. The Court’s decision would be expected to apply to criminal trials, as well as other adversarial proceedings, however. Here are the facts from that case, as described by the Supreme Court:

After petitioner had been arrested for rape and related offenses, he was iden- tified by the complaining witness as her assailant at the ensuing preliminary hearing, during which petitioner was not represented by counsel nor offered appointed counsel. The victim had been asked to make an identification after being told that she was going to view a suspect, after being told his name and having heard it called as he was led before the bench, and after having heard the prosecutor recite the evidence believed to implicate peti- tioner. Subsequently, petitioner was indicted, and counsel was appointed, who moved to suppress the victim’s identification of petitioner. The Illinois trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim’s identification. At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing, and there was certain other evidence linking petitioner to the crimes. He was convicted and the Illinois Supreme Court affirmed. (p. 220)

Notwithstanding the clear violation of the Sixth Amendment in this case (which the Supreme Court also pointed out), the Court pointed to the suggestiveness that occurs when a witness identifies a suspect for the first time at a formal hearing:

It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case. The victim who had seen her assailant for only 10 to 15 seconds, was asked to make her identification after she was told that she was going

DECISION-MAKING EXERCISE 9.4

Making a Valid Identification

Wilma Hobbes was unable to identify the man suspected of raping her, even after the police presented her with a photographic array and a lineup. Some weeks later, in a chance encounter while walking through the local

courthouse, Wilma passed a person whom she believed was her rapist. He was subsequently arrested, and she identified him at the trial. Should this identification be considered valid? IS

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Simmons v. United States (390 U.S. 377 [1968])

to view a suspect, after she was told his name and heard it called as he was led before the bench, and after she heard the prosecutor recite the evidence believed to implicate petitioner. Had petitioner been represented by counsel, some or all of this suggestiveness could have been avoided. (pp. 229–230)

What message is to be gleaned from Moore v. Illinois? In general, law enforcement officials should have witnesses identify suspects via lineups, showups, or photographic arrays prior to the point at which adversarial proceedings commence. Any of these iden- tification procedures would result in a less suggestive identification than would be likely at trial. Clearly, though, lineups, showups, and photographic arrays can also be suggestive.

Photographic Identifications

The last type of identification procedure to be considered in this text is the photographic identification array. It involves displaying a picture of the suspect along with pictures of several other people to a victim or witness for the purpose of identification.

Photographic identification procedures approximate real-life lineups by including several people, but they are not subjected to the same constitutional restrictions that lineups are. In particular, there is no Sixth Amendment right to counsel during a photo- graphic identification. However, due process protections do apply.

To minimize due process problems, several photographs of like individuals should be shown to the witness or victim so as to minimize unnecessary suggestive- ness. In Simmons v. United States (390 U.S. 377 [1968]), the Supreme Court shed some light on the importance of a carefully constructed photographic array:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial follow- ing a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (p. 384)

As indicated, to conform to due process requirements, multiple photographs of like individuals are ideal for a photographic array. However, in one case, the Supreme Court sanctioned a photographic array consisting of one picture. In Manson v. Braithwaite (432 U.S. 98 [1977]), the Court sanctioned an in-court identification based on an earlier identification from a single photograph because it was reliable based on the totality of circumstances. The reasons the Court cited are illustrative. In particular, the Court described how Glover, the witness, who was also a police

Manson v. Braithwaite (432 U.S. 98 [1977])

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286 Part 3 • Interrogations, Confessions, and Identification Procedures

officer, arrived at his conclusion that the suspect (referred to below as the vendor of illegal drugs) in the photograph was, in fact, the perpetrator. Here are the criteria on which the Court focused:

• The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.

• The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty—and specialized and dangerous duty—when he called at the third floor of 201 Westland in Hartford on May 5, 1970. . . . It is true that Glover’s duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

• The accuracy of the description. Glover ’s description was given to D’Onofrio [a backup officer] within minutes after the transaction. It included the vendor’s race, his height, his build, the color and style of his hair, and the high cheek- bone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D’Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D’Onofrio produced and identified its subject as the narcotics seller.

• The witness’s level of certainty. There is no dispute that the photograph in question was that of respondent.

• The time between the crime and the identification. Glover’s description of his vendor was given to D’Onofrio within minutes of the crime. The photographic identifica- tion took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph. (pp. 114–116)

Taken together, these five considerations led the Court to this conclusion:

These indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U.S., at 383, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D’Onofrio had left the photograph at Glover’s office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the pho- tograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection. (p. 116)

The Manson decision suggests that single-photograph arrays are constitution- ally permissible, but understand that the witness in this case was a police officer and that the facts were somewhat unusual. It is doubtful that the Supreme Court would

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Chapter 9 • Identification Procedures and the Role of Witnesses 287

FIGURE 9.2 Lineup, Showup, and Photographic Array Policy (Gallatin, TN, Police Department)

9.29 Showup, Lineup, and Photographic Identification

9.29.1 Showup

A showup is the presentation of a suspect to an eyewitness a short time after the com- mission of a crime. Many courts have suppressed evidence from a showup due to the inherent suggestiveness of the event. Because of this, a lineup is preferred over a showup when possible. However, when exigent circumstances require the use of a showup, the following guidelines will be used:

1. A showup will not be conducted when the suspect is in a cell, restrained, or dressed in jail clothing;

2. A showup will not be conducted with more than one witness present at a time. Witnesses will not be allowed to communicate with each other regarding the iden- tification of the suspect;

3. The same suspect will not be presented to the same witness more than once; 4. The suspect will not be required to put on clothing worn by the perpetrator, speak

words uttered by the perpetrator, or perform other actions of the perpetrator; and 5. Officers will not say or do anything that might suggest to the witness that the sus-

pect is or may be the perpetrator.

9.29.2 Photographic Identification

In conducting a photographic identification, an officer must use multiple pho- tographs shown individually to a witness or simultaneoulsy in a book or array. Additionally, an officer will adhere to the following guidelines when conducting a photographic identification:

1. Use at least six photographs of individuals who are reasonably similar in age, height, weight, and general appearance and of the same sex and race;

2. Whenever possible, avoid mixing color and black and white photos, use photos of the same size and basic composition, and never mix mug shots with other snap- shots or include more than one photo of the same suspect;

3. Cover any portions of mug shots or other photographs that provide identifying information on the subject, and similarly cover those used in the array;

4. Show the photo array to only one witness at a time; 5. Never make suggestive statements that may influence the judgement or percep-

tion of the witness; and 6. Preserve the photo array, together with full information about the identification

process, for future reference.

9.29.3 Lineup

A lineup is the live presentation of at least five individuals to a victim. In conducting a lineup, an officer will schedule the lineup on a date and at a time that is convenient for all concerned parties. Additionally, the officer must fulfill necessary legal requirements for the transfer of a subject to the lineup location should he/she be incarcerated at a detention center; make timely notice to the detention center concerning the pickup; and make arrangements for picking up the prisoner. Finally, the officer must make arrange- ments to have at least four other persons act as “fill ins” at the lineup who are of the

Figure 9.2 continued

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288 Part 3 • Interrogations, Confessions, and Identification Procedures

same race, sex, and approximate height, weight, age, and physical appearance and who are similarly clothed.

The officer in charge of conducting the lineup will ensure that the following requirements are adhered to:

1. Ensure that the prisoner has been informed of his/her right to counsel if formal charges have been made against him/her, and also ensure that he/she has the opportunity to retain counsel or request that one be provided;

2. Obtain a written waiver on the prescribed departmental form should the prisoner waive his/her right to counsel;

3. Allow counsel representing the accused an opportunity to observe the manner in which the lineup is conducted;

4. Advise the accused that he/she may take any position in the lineup which he/she prefers and may change positions prior to summoning a new witness;

5. Ensure that all persons in the lineup are numbered consecutively and are referred to only by number;

6. Ensure that a complete written, audio, and video record of the lineup proceedings are made and retained when possible;

7. Ensure that witnesses are not permitted to see nor are they to be shown any photographs of the accused immediately prior to the lineup;

8. Ensure that not more than one witness views the lineup at a time and that they are not permitted to speak with one another during lineup proceedings; and

9. Scrupulously avoid using statements, clues, casual comments, or providing unnecessary or irrelevant information that in any manner may influence the witnesses’ decision-making process or perception.

Source: From General Directives Manual, Gallatin, Tennessee, Police Department (December 28, 1999).

Used courtesy of the Gallatin Police Department.

uphold a similar identification today. It is always preferable to place multiple pictures of like individuals in a photographic array.

To summarize the points made thus far, see Figure 9.2. It contains the Gallatin, Tennessee, Police Department’s policy for the use of showups, lineups, and photo- graphic arrays.

IDENTIFICATION PROCEDURES: FLAWS AND FIXES

Nearly every suspect identification procedure can be flawed in some fashion, some more than others. Consider showups. No matter what steps police take to ensure fair- ness, showups are prone to mistaken identification. And the consequences of mistaken identification can be serious:

Billy Wayne Miller was asleep in a back bedroom of his father’s modest Oak Cliff home when three Dallas police officers burst through the front door around 3 a.m., guns in hand, yelling another man’s name. Still groggy and clad only in his underwear, Mr. Miller was taken to the front porch. There he spotted a woman in a squad car glance at him and nod to an officer seated beside her before the car drove away. That split-second, one-man lineup cost Mr. Miller 22 years of his life on a rape conviction that DNA evidence later invalidated.4

4 S. McGonigle and J. Emily, “DNA Exoneree Fell Victim to ‘Drive-by’ Identification,” Dallas Morning News, October 13, 2008: http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/101308dnproDNA showups.264c41d.html (accessed November 4, 2008).

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Chapter 9 • Identification Procedures and the Role of Witnesses 289

DECISION-MAKING EXERCISE 9.5

Creating a Valid Photographic Array

A rapist tells each of his victims that he has already been imprisoned for rape. His latest victim, Sandy, tells the police what he said. The police then show Sandy a single photo- graph of a rape suspect who was previously imprisoned. Sandy identifies the man in the photo as her rapist. Is this photographic array constitutional? Next, assume that the

rapist does not tell his victims he has previously been impris- oned and that the police place his photo in a photographic array with the photos of two other individuals. Is this proce- dure appropriate? What if five photos are shown: three of the rapist (each from different points in time, with different clothes, etc.) and one each of the other two individuals?

DECISION-MAKING EXERCISE 9.6

The Photo Array Revisited

What if for purposes of having several of a suspected rapist’s victims identify him in a photographic lineup, the police tell the second witness who the first witness identified, the third witness who the first and second witnesses identified, and

so on? What if, instead, the police show five different photo- graphic arrays to a single witness, but the suspected rapist appears once in each array?

Stories like Billy Wayne Miller’s could be less common if authorities relied exclu- sively on lineups and photographic identification procedures. However, even lineups can be flawed. And so can photographic arrays. The Innocence Project, an organization that works to exonerate wrongfully convicted inmates, claims that “eyewitness misidentification is the single greatest cause of wrongful convictions nationwide.”5 The organization highlights some situations in which lineups and photographic procedures led to wrongful convictions:

• A witness in a rape case was shown a photo array where only one photo—of the person police suspected was the perpetrator—was marked with an “R.”

• Witnesses substantially changed their description of a perpetrator (including key information such as height, weight, and presence of facial hair) after they learned more about a particular suspect.

• Witnesses only made an identification after multiple photo arrays or lineups—and then made hesitant identifications (saying they “thought” the person “might be” the perpetrator, for example), but at trial the jury was told the witnesses did not waver in identifying the suspect.6

Some might take issue with the Innocence Project’s arguments, but many researchers have also found that identification procedures can be problematic, so much so that in May of 1998, then U.S. attorney general Janet Reno organized a working group of prosecutors, defense attorneys, police officers, and other experts who were tasked with creating a set of “best practices” for identification procedures. The working group’s findings were echoed in an article published by a group of psychologists at around the same time. They identified “four simple rules of proce- dure that follow from the scientific literature that we argue could largely relieve the

5 http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (accessed November 4, 2008). 6 Ibid.

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criminal justice system of its role in contributing to eyewitness identification problems.”7 The rules were:

• The person who conducts the lineup or photospread should not be aware of which member of the lineup or photospread is the suspect.

• Eyewitnesses should be told explicitly that the person in question might not be in the lineup or photospread and therefore should not feel that they must make an identification. They should also be told that the person administering the lineup does not know which person is the suspect in the case.

• The suspect should not stand out in the lineup or photospread as being different from the distractors based on the eyewitness’s previous description of the culprit or based on other factors that would draw extra attention to the suspect.

• A clear statement should be taken from the eyewitness at the time of the identifi- cation and prior to any feedback as to his or her confidence that the identified person is the actual culprit.8

Double-Blind Lineups

When the investigator conducting a lineup knows who the suspect is, he or she can unintentionally (and even intentionally) influence the witness and thereby taint the identification procedure. For example, the investigator may say to the witness, “Why don’t you take another look at number three.” Assuming the suspect is in the number three position in a lineup, clearly this comment could sway the witness in the direction the investigatory prefers.

A double-blind lineup is one in which the investigator conducting the lineup (or assembling a photo array) does not know who the suspect is. This helps ensure that the investigator will not lead the witness in a particular direction. Studies indeed show that double-blind procedures reduce the risks of mistaken identifications.9 Here is a summary of the findings from one of the most recent studies in this area:

8 Ibid., pp. 627–635. 9 See, e.g., S. M. Greathouse and M. B. Kovera, “Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on Eyewitness Identification,” Law and Human Behavior 33 (2009): 70–82; R. M. Haw and R. P. Fisher, “Effects of Administrator-Witness Contact on Eyewitness Identification Accuracy,” Journal of Applied Psychology 89 (2004): 1106–1112; M. B. Russano, J. J. Dickinson, S. M. Greathouse, and M. B. Kovera, “Why Don’t You Take Another Look at Number Three: Investigator Knowledge and Its Effects on Eyewitness Confidence and Identification Decisions,” Cardozo Public Law, Policy, and Ethics Journal 4 (2006): 355–379.

DECISION-MAKING EXERCISE 9.7

Mistaken Identification?

Janice Bolan, a rape victim, was examined at a hospital and a rape kit was collected. No sperm cells were identified in the first examination of the swabs. Bolan then gave police a de- scription of her attacker, saying he was an African American male between 25 and 30 years of age, approximately 6 feet tall, and had a beard. She then helped officers create a sketch of the perpetrator, which was circulated throughout the community. A week later, police received a call that a

man fitting the description was working in a nearby grocery store. Police took Bolan by the store and asked if the man, Dean Cage, was her attacker. She answered yes. Police then conducted a lineup at the police station. Once again, Bolan identified Cage as her attacker. Cage was arrested and con- victed in a bench trial, after she testified in court that she was “100 percent sure” Cage was the rapist—and pointed to him in court. Is there anything wrong with these events?

7 G. L. Wells, M. Small, S. Penrod, R. S. Malpass, S. M. Fulero, and C. A. E. Brimacombe, “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” Law and Human Behavior 22 (1998): 603–647.

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Administrator knowledge had the greatest effect on identifications of the suspect for simultaneous photospreads paired with biased instructions, with single-blind administrations increasing identifications of the suspect. When biased instructions were given, single-blind administrations produced fewer foil identifications than double-blind administrations. Administrators exhibited a greater proportion of biasing behaviors during single-blind administrations than during double-blind administrations.10

Virtual Officer Lineups

A problem with double-blind lineups is that they are resource intensive. They require at least two investigators instead of the usual one—one to know the identity of the suspect and another to administer the lineup without knowing the suspect’s real identity. One solution to this problem is to use a “virtual officer” to conduct the procedure.11 One team of researchers has gone so far as to develop software in which a virtual officer (called “Officer Garcia”) conducts a photographic display. Because the virtual officer does not know the identity of the suspect or his or her placement in the array, the procedure is not susceptible to investigator influence. A “YouTube” demonstration is available online.12

IDENTIFICATION DURING TRIAL

Often, a witness will be called on to identify the perpetrator of a crime (usually, the defendant) during the trial. Sometimes, this process is straightforward and subject to little dispute by either party to the case. Other times, an in-court identification can be tainted by an out-of-court identification. (This problem is discussed in the exclusionary rule section toward the end of this chapter.) Accordingly, it is worth considering the wit- ness questioning process.

A criminal trial is a carefully choreographed event, in which each party—the defense and the prosecution—has the right to ask questions as well as attack the credi- bility or believability of a witness’s testimony. By custom, the plaintiff in a civil case has the burden of persuasion, so he or she goes first. That is, the plaintiff calls all his or her witnesses and presents the evidence required to build the case. When the plaintiff rests, then the defense has its turn.

Criminal cases are similarly choreographed. First, the prosecutor presents the state’s case, and, then, the defendant presents his or her case. The process of examining witnesses, however, is much more complicated than this simple description. The following subsec- tions are designed to shed light on this often confusing aspect of criminal procedure.

Forms of Questions

Witness questioning in a criminal trial proceeds through four stages. The first is direct examination, in which the witness is questioned by one party. Next, cross-examination takes place. This is where the other party to the case has an opportunity to question the witness. The next two stages are redirect and recross-examination, in which both parties ask further questions of witnesses pursuant to direct and cross-examination.

As a general rule, on direct examination, the questions must be specific but not leading. A specific question is one that does not call for a narrative. If the party calling the witness says, “Tell us what happened on the day of the incident,” the opposing side

10 Greathouse and Kovera, p. 70. 11 O. H. MacLin, L. A. Zimmerman, and R. S. Malpass, “PC-Eyewitness and the Sequential Superiority Effect: Computer-Based Lineup Administration,” Law and Human Behavior 29 (2005): 303–321. 12 http://www.youtube.com/watch?v=SEhcLQmwtjQ (accessed November 4, 2008).

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A witness is often called on to identify a suspect at trial.

will probably object. Instead, it is proper to ask something along the lines of, “Were you the victim of a burglary on August 6 of this year?”

At the other extreme, it is possible to be too specific, such that a question becomes leading. A leading question is, according to the California Evidence Code, one “that sug- gests to the witness the answer that the examining party desires.”13 An example of a leading question is, “Isn’t that the perpetrator sitting right there at the defense table?” Leading questions are generally impermissible on direct examination (subject to some exceptions, described later) but permissible on cross-examination. Further, leading questions are permissible on redirect examination but not on recross-examination.

Figure 9.3 lists a number of other means for challenging the questions asked of witnesses, which are raised in the form of objections. If the judge sustains an objection raised by either party, the witness cannot answer the question. If the witness answers the question anyway, his or her response will be stricken from the record.

Refreshing a Witness’s Memory

Witnesses frequently forget the facts to which they are supposed to testify, particularly if a great deal of time has expired between the event witnessed and the date of the in-court testimony. To remedy this problem, the Federal Rules of Evidence provide that a witness’s prior experience may be revived by referral to the witness’s prior statements.14 Of course, if a witness has no memory whatsoever of the event to which he or she is to testify, then he or she is an incompetent witness. But if a refresher is all that is needed, then the examining party should be able to remind the witness of what he or she said in the past.

The process of refreshing a witness’s memory involves two important concepts: (1) present memory revived and (2) past memory recorded. With regard to present

14 Ibid., Rule 612.

13 California Evidence Code, Section 764. Available online: http://www.leginfo.ca.gov (accessed November 3, 2008).

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Chapter 9 • Identification Procedures and the Role of Witnesses 293

memory revived, the in-court testimony of the witness is the evidence. By contrast, past memory recorded refers to a written account as being the evidence, not the witness’s in-court testimony.

In the first concept, where a witness’s present memory is revived when, for example, he or she is asked to refer to records or other written documents. After the witness views the documents and has his or her memory refreshed, his or her state- ment to this effect is admitted as evidence. The document(s) shown to the witness is not read or shown to the jury because the document is not evidence, only the witness’s testimony. Assume, for example, that a witness to a car accident is asked whether she remembers the license plate number of the car that sped away from the scene. She replies that she is uncertain but may be able to recall the number if she can consult some notes she wrote on the day she witnessed the car leaving the scene. If the witness is permitted to rely on her notes and she then remembers the license plate number, then she will be permitted to testify to this effect under a theory of present memory revived.

The second theory of refreshing a witness’s memory is, as indicated, past recollec- tion recorded. Recall that in such an instance, it is the recording itself that is admitted

FIGURE 9.3 Common Objections to the Questions Asked of Witnesses

1. “Asked and answered.” The question simply asked the witness to repeat testimony previously offered in response to a question.

2. “Assumption of facts not in evidence.” The question asked the witness to comment on information that has not been introduced as evidence.

3. “Argumentative.” The question was intended to argue with the witness, rather than elicit information from him or her. Such questions are designed to win over the jury.

4. “Compound.” The question asked more than one question, thus requiring more than one clear-cut answer.

5. “Misleading.” The question was based on inaccurate evidence or a misinterpreta- tion of events.

6. “Speculation and conjecture.” The question asked the witness to offer a guess or expectation. Witnesses, especially lay witnesses, are supposed to answer ques- tions based on what they know.

7. “Uncertain, ambiguous, or unintelligible.” The question has either many meanings or none at all.

8. “Nonresponsive to the question.” When asked a yes or no question, the witness responded evasively or vaguely.

9. “Substantive objection.” A rule of evidence has been violated.

DECISION-MAKING EXERCISE 9.8

Identify the Leading Questions

What follows are several hypothetical questions that a prose- cutor would ask a witness. Decide whether each is a leading question: (1) “Is the man who assaulted you in the courtroom today?” (2) “Could you point to the man who assaulted

you?” (3) “Isn’t the man who assaulted you sitting in this courtroom today?” (4) “Isn’t that the man who assaulted you?” (5) “Isn’t it true that the man who assaulted you is sitting right there?”

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as evidence. That is, the jury considers the document as opposed to the witness’s testimony. The written document essentially becomes a substitute for the witness’s memory.

Certain requirements must be met before a past recollection recorded will be admitted into evidence. First, the witness must testify that he or she had personal knowledge of the facts at one time. Second, the witness must testify that the recording was accurate. Third, the witness must testify that he or she does not have adequate recollection of the facts such that he or she could testify to them in court. In addition, the trial judge must be satisfied with the document in order for it to be admissible into evidence. Finally, once a past recollection recorded has been admitted into evidence, the opposing side should have the opportunity to view the document (see United States v. Kelly, 349 F.2d 720 [2nd Cir. 1965]; People v. Banks, 50 Mich. App. 622 [1974]).

Witness Credibility

Credibility, first off, should be distinguished from competence. Competence pertains to a witness’s ability to remember events, communicate effectively, and understand the importance of telling the truth, as well as the consequences of not doing so. Credibility pertains to whether the witness’s testimony should be believed. In other words, can the witness’s statements be judged as truthful? If the witness is able to remember events, communicate clearly to the jury, and come across as convincing, he or she will probably be regarded as credible.

When discussing competence, courts often refer to the processes of accrediting and discrediting. A witness can be discredited when the prosecution or defense challenges his or her credibility. The process of accrediting is the opposite, or when the prosecution or defense attempts to support, bolster, or improve a witness’s credibility.

It is important to note that specific rules govern the processes of accrediting and discrediting. First, it is universally agreed on that in absence of an attack on a witness’s credibility, no evidence may be introduced to support or bolster his or her credibility. According to the court in United States v. Price (722 F.2d 88 [5th Cir. 1983]), “[T]here is no reason why time should be spent in proving that which may be assumed to exist. Every witness must be assumed to be of normal moral character for veracity, just as he is assumed to be of normal sanity” (p. 90). Simply put, a witness generally cannot be accredited until someone, whether the prosecution or the defense, attempts to discredit him or her.

Consider the situation in which a witness is asked to introduce himself or herself and describe his or her background. The prosecution or defense may ask direct ques- tions about the witness’s familiarity with the case or, in the case of an expert witness, questions about the witness’s occupation, background, and professional accomplish- ments. This type of questioning would appear to be accrediting, but a certain amount of background information can be supplied by introductory witness questioning without it being considered accreditation. However, there is a point where accrediting must stop, absent an attack on the witness’s credibility. Unfortunately, there are few answers as to what amount of accrediting background information is permissible. According to the court in Government of Virgin Islands v. Grant (938 F.2d 401 [1985]):

The jurisprudence of “background” evidence is essentially undeveloped. “Background” or “preliminary” evidence is not mentioned in the evidence codes, nor has it received attention in the treatises. One justification for its admission, at least in terms of the background of a witness qua witness, is that it may establish absence of bias or motive by showing the witness’s rela- tionship (or non-relationship) to the parties or to the case. (p. 513)

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It is safe to conclude, though, that when the introduction process turns aggran- dizing—that is, into more than an introduction—the accrediting of a witness must stop.

In one interesting case, Pointer v. State (74 So.2d 615 [Ala. Ct. App. 1954]), the pros- ecutor, during his closing statement, said that if the prosecution witness had been of bad character, the issue would have been raised by the defense. The court reversed the ensuing conviction, holding that because there was no attack on the witness’s credibil- ity during trial, the prosecutor was not permitted to bolster the witness’s credibility (see also Poole v. Commonwealth, 176 S.E.2d 917 [Va.1970]).

A controversial issue with regard to accrediting concerns what can be done to bol- ster a witness’s credibility when he or she cannot remember important events. If, for example, a witness testifies to a series of events but states that she is unable to remem- ber everything, may another witness be called to offer reasons for the woman’s memory lapse? A question similar to this was raised in United States v. Awkward (597 F.2d 667 [9th Cir.], cert. denied, 444 U.S. 885 [1979]). In that case, the Ninth Circuit Court of Appeals ruled that it was wrong for a prosecution witness to testify that he had been hypnotized and to permit a prosecution expert who had hypnotized that individual to testify about the effects of hypnosis on him or her. As the court observed:

[U]nless an adverse party attacks the witness’s ability to recall by bringing out or exploring the fact of hypnosis, the use of expert testimony to support the efficacy of hypnosis is improper. The party calling a witness should not be permitted to inquire in any way into the witness’s ability to recall, or methods of pretrial memory refreshment, until such questions have been raised by the adversary. (p. 679)

In sum, witness accrediting is permissible, but usually “only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise” (Blake v. Cich, 79 F.R.D. 398 [D. Minn. 1978], p. 403). In legal parlance, accred- iting of this sort is also known as witness rehabilitation, which is addressed following the discussion of impeachment. Note, however, that this restriction on accrediting is not recognized in most modern evidence statutes, except with regard to character evidence. That is, most modern statutes do not allow accrediting of a witness’s character but remain silent as to other types of accrediting.15

IMPEACHMENT The formal term for attacking a witness’s credibility is impeachment. When faced with a witness who is not believed to be telling the truth, the prosecution or defense may decide to challenge the witness’s believability before the jury. The jury will then draw its own conclusions as to the witness’s truthfulness and believability.

How does impeachment occur? It is most often used by one party to a case against another. Generally, the process begins on cross-examination. The prosecution or the defense can attack a witness’s credibility for a number of different, well- established reasons (see Figure 9.4). However, there is little value in attempting to impeach a witness if his or her testimony does not carry much weight or is unpersua- sive to the jury. Alternatively, if there is no basis for an attack on a witness’s credibility but the opposing side attempts to do so anyway, the impeachment effort could backfire.

15 Ibid., Rule 608(a)(2).

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REHABILITATION When the credibility of a witness is attacked, the side that produced the witness can take steps to bolster his or her credibility, either by calling other wit- nesses or introducing other evidence. This process is known as rehabilitation. Rehabilitation occurs during redirect examination, which follows cross-examination. For example, assume the defense calls a witness. The defense attorney will question the witness in an effort to absolve the defendant of guilt. If the prosecution sees fit to impeach the defense witness and succeeds in doing so, the defense attorney will work to rehabilitate its witness during the redirect examination stage.

In discussing the importance of rehabilitation, one court observed that “it is well recognized that once a witness’s credibility has been attacked, whether it be by the introduction of evidence of bad reputation, conviction of crime, inconsistent statements, evidence of misconduct, or by incisive cross-examination, the party calling the witness has a right to present evidence designed to rehabilitate the witness’s credibility” (State v. Bowden, 439 A.2d 263 [R.I. 1982]).

Three common approaches are used to rehabilitate witnesses. The first is to argue that the witness was untruthful in the past but is telling the truth now. Perhaps the witness was once a deceptive miscreant but has been reformed to the extent that he or she can now be trusted. Alternatively, if a witness lies in order to avoid prosecution, it is possible that evidence could be admitted to show that he or she does not have a reputation for telling the truth (United States v. Lechoco, 542 F.2d 84 [D.C. Cir. 1976]).

Second, the party seeking to rehabilitate its own witness may argue that a contra- dictory or inconsistent statement alluded to by the other side was taken out of context. For example, suppose that part of a police report is used to impeach an officer who is giving testimony. The party seeking to rehabilitate the officer may then introduce other portions of the police report that shed light on the part used to impeach the officer (see Short v. United States, 271 F.2d 73 [9th Cir. 1959]).

A third way to rehabilitate a witness is to introduce other evidence to bolster his or her credibility. For example, suppose that a witness makes a statement prior to trial that contradicts his or her statement at trial. The other side may then elect to intro- duce additional pretrial statements supportive of his or her statements at trial. Refer to the infamous O. J. Simpson case and recall that Detective Mark Fuhrman was impeached by the defense because he had made racially discriminatory statements in the past. Had the prosecution called other police witnesses to testify as to Fuhrman’s objectivity with regard to race, their testimony may have rehabilitated Fuhrman as a witness.

Given the importance of witness identification, it is useful to know how to be a good witness to criminal activity as well as a good in-court witness. This information is provided in Figures 9.5 and 9.6, respectively.

FIGURE 9.4 Methods of Witness Impeachment

1. Establish bias or prejudice. 2. Point to prior convictions. 3. Allege uncharged crimes and immoral acts. 4. Identify contradictions and prior inconsistent statements. 5. Suggest inability to observe events. 6. Challenge reputation.

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FIGURE 9.5 Tips for Being a Good Witness to Criminal Activity

1. Try to remember the basics: a. Who was the person? b. What did he or she do? c. When and where did he or she do this?

2. Was the offender an acquaintance or a stranger? Would you recognize the offender if you saw him or her again?

3. Pay attention to details: Was the offender male or female? What race or ethnicity was he or she? What was his or her approximate age? Height? Weight? Body build? Hair color and length? Any distinguishing features? What clothes was he or she wearing? Was he or she wearing a coat? Hat? Glasses? Did he or she have any weapons? What car was he or she driving, if any? What was the license plate number? What were the make, model, and color of the car? Features of the vehicle?

4. What did the offender say? What did he or she do? How did he or she act? Was anyone injured?

5. Where is the offender, or where did he or she go? How did he or she leave? How long ago did this happen?

FIGURE 9.6 Tips for Testifying in Federal Court

TIPS FOR TESTIFYING IN FEDERAL COURT

United States Department of Justice

1. A neat and clean appearance is very important for court. You should be comfortable, yet appropriately dressed for court (i.e., no hats, shorts, etc.). Avoid distracting mannerisms such as chewing gum.

2. Jurors who are, or will be, sitting on the case in which you are a witness may be present in the same public areas as you. For that reason, you should not discuss the case with anyone. Remember, too, that jurors may have the opportunity to observe how you act outside of the courtroom. If you see a juror, you are not allowed to speak to the juror, even to say hello.

3. When you are called to testify, you will first be sworn in. When you take the oath, pay attention to the clerk, and say “I do” clearly.

4. When a witness gives testimony, he/she is first asked some questions by the lawyer calling him or her to the stand; in your case, this is an Assistant United States Attorney. This is called the “direct examination.” Then, the witness is ques- tioned by the opposing lawyer (the defense counsel) in “cross examination.” (Sometimes the process is repeated two or three times to help clear up any confu- sion.) The basic purpose of direct examination is for you to tell the judge and jury what you know about the case. The basic purpose of cross examination is to explore the accuracy of your testimony. Don’t get mad if you feel you are being doubted in cross examination.

DO NOT LOSE YOUR TEMPER. An angry or impolite witness will probably not be believed. Always be polite and courteous.

Figure 9.6 continued

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298 Part 3 • Interrogations, Confessions, and Identification Procedures

5. OBJECTION is a legal term that means one of the attorneys feels you are being asked an improper kind of question. When you hear a lawyer say “objection,” simply stop speaking and wait for the judge to rule on the objection. If the judge decides the question is proper, he/she will OVERRULE the objection. If the judge decides the question is not proper, he/she will SUSTAIN the objection. You will be told either by the judge or the attorney whether to answer that question or another question.

Whenever you are asked a question, listen to the whole question before you start to answer. Make sure you understand the question and then give your answer. If you do not understand the question or if you want it repeated, say so.

6. A SIDEBAR is when the judge and the attorneys meet at the judge’s bench to discuss various matters, including technical disputes over the Federal Rules of Evidence. They meet at the judge’s bench so the jury cannot hear their discussion.

7. Before you testify, try to picture the scene, the objects there, the distances, and exactly what happened so that you can recall the facts more accurately when you are asked. If the question is about distances or time, and if your answer is only an estimate, be sure you say it is only an estimate. Beware of suggestions by attorneys as to distances or times when you do not recall the actual time or distance. Do not agree with their estimate unless you independently arrive at the same estimate.

8. Speak in your own words. Don’t try to memorize what you are going to say. Doing so will make your testimony sound rehearsed and unconvincing. Instead, be yourself, and prior to trial go over in your own mind those matters about which you will be questioned.

9. Most important of all, you are sworn to TELL THE TRUTH. Tell it. Every true fact should be readily admitted. Do not stop to figure out whether your answer will help or hurt either side. As a witness you are expected to be an impartial spokesperson for the facts as you know them.

10. Try to answer questions by stating what you saw or heard. You should not give an opinion unless you are asked to do so. You should not say what somebody else saw or heard unless you are asked.

11. Give positive, definite answers when at all possible. Avoid saying, “I think,” “ I believe,” or “In my opinion,” if you can be positive. If you do know, say so. Don’t make up an answer. Be positive about things which you remember. If you are asked about details which you do not remember, simply say you don’t remember.

12. You should answer only the questions asked and not volunteer information. 13. Unless you are sure, don’t say “that’s all of the conversation,” or “nothing else

happened”. Instead, say “that’s all I recall,” or “that’s all I remember happening”. It is possible that after more thought or another question, you will remember something important.

14. The court reporter must be able to hear all your answers, so please don’t nod your head for a “yes” or “no” answer. Speak loudly and clearly. Also, you will sound best if you don’t use words like “yah”, “nope”, and “uh-huh”.

15. When you answer a question, you may find it easiest to simply look at the person who asked the question. Use the same tone and effort when answering questions from both sides.

16. Do not exaggerate. Don’t make overly broad statements that you may have to correct. Be particularly careful in responding to a question that begins, “Wouldn’t you agree that . . . ?”. The explanation should be in your own words. Do not allow an attorney to put words in your mouth.

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Chapter 9 • Identification Procedures and the Role of Witnesses 299

THE EXCLUSIONARY RULE AND IDENTIFICATIONS

When identification procedures violate constitutional protections, the results from such procedures cannot be considered admissible in a criminal trial. Generally, there are two means by which identifications will be excluded: (1) when an in-court identification is tainted by an out-of-court identification and (2) when a suspect is searched and/or seized improperly and then identified by a witness.

Tainted Identifications

In-court identifications are viewed cautiously. In most such situations, the defendant is sitting in the court room, not surrounded by anyone else matching his or her description (as in a lineup), and sometimes looking sinister or even guilty (e.g., wearing prison cover- alls). Furthermore, given the fact that the defendant has been identified—at least, for trial purposes—as the one suspected of having committed a crime, witnesses often jump to the conclusion that the defendant is the one who should be held responsible.

Nevertheless, courts routinely permit in-court identifications. But if an in-court identification is tainted by an out-of-court identification, it may be excluded. This is known as a tainted identification.

Unfortunately, it is not always easy to decide whether an in-court identification is “fruit of the poisonous tree.” In United States v. Wade, the Supreme Court held that an illegally conducted lineup does not invalidate later identifications resulting from an “independent source.” The independent source in this context does not have to be another person. Instead, if the witness had plenty of time to view the perpetrator prior to the police lineup, showup, or photographic array, then his or her in-court identifica- tion may be admissible. Some factors that are considered include

the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s

17. Listen carefully to the questions you are asked. Understand the question, have it repeated if necessary, then give your answer.

18. If your answer was not correctly stated, correct it immediately. If your answer was not clear, clarify it immediately. It is better to correct a mistake yourself than to have the attorney discover an error in your testimony. If you realize you have an- swered incorrectly, say, “May I correct something I said earlier?”

19. Sometimes, witnesses give inconsistent testimony—something they said before doesn’t agree with something they said later. If this happens to you, don’t get flus- tered. Just explain honestly why you were mistaken. The jury, like the rest of us, understands that people make honest mistakes.

20. Sometimes an attorney may ask if you have talked to anybody about the case. It is perfectly proper for you to have talked to people before you testified, and you should, of course, respond truthfully to this question.

21. After you have completed testifying, you should not tell other witnesses what was said during your testimony until after the case is completed. Thus, do not ask other witnesses about their testimony and do not volunteer information about your own. Once you have been formally excused as a witness, you are free to go. Remember to fill out the witness voucher so you may be reimbursed.

Source: United States Attorney’s Office, District of Colorado. Available online: http://www.justice.gov/

usao/wie/vicwit/Tips.pdf (accessed February 16, 2011).

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300 Part 3 • Interrogations, Confessions, and Identification Procedures

United States v. Crews (445 U.S. 463 [1980])

actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to iden- tify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. (p. 241)

Also, if the witness did not experience intense anxiety or pressure during the criminal act (and thus had plenty of opportunity to absorb what was occurring), it is likely that his or her in-court identification will not be tainted by questionable police conduct during a lineup (see United States v. Johnson, 412 F.2d 753 [1st Cir. 1969], cert. denied, 397 U.S. 944 [1970]).

Identifications Resulting from Illegal Searches and Seizures

What happens if a person is wrongfully arrested—say, based on less than probable cause—and then placed in a lineup and identified by a witness? Can the witness’s iden- tification be considered admissible in a criminal trial? What if, further, the lineup is nonsuggestive and otherwise abides by constitutional requirements? Unfortunately, the Supreme Court has offered few answers to these questions.

Davis v. Mississippi (394 U.S. 721 [1969]) is a worthwhile point of departure. In Davis, the fingerprint identification of a rape suspect was deemed inadmissible because it was the product of an illegal arrest. However, in United States v. Crews (445 U.S. 463 [1980]), the Supreme Court decided otherwise. In that case, Crews was illegally arrested and photographed and then his photograph was shown to a witness, who identified him as the perpetrator. He was tried and convicted based, in part, on the witness’s identification. The Supreme Court agreed with the trial court that the arrest was illegal but still upheld Crews’s conviction. Three members of the majority justified this decision by arguing that the “fruit” was gathered at the point of the illegal arrest, as opposed to later, so the derivative evidence doctrine should not apply. The Court further noted that the identification had not “ ‘been come at by exploitation’ of the violation of the defendant’s Fourth Amendment rights” (p. 471).

Inasmuch as Crews was decided well after Davis v. Mississippi, it would seem that an identification resulting from an illegal search and/or seizure would be admissible. Think back, as well, to how the exclusionary rule applies in the Miranda context. The Supreme Court held in United States v. Bayer (331 U.S. 532 [1947]) that the “fruit of the poisonous tree” doctrine does not control the admissibility of physical evidence obtained from illegal confessions. These decisions, taken together, chip away at the

DECISION-MAKING EXERCISE 9.9

When Is an In-Court Identification Tainted?

Joan Vines heard noises emanating from Sarah Locklear’s apart- ment and minutes later saw two men, one with black gloves and a brown paper bag, exit from the basement of the building and leave in a green 1956 Plymouth. Vines left her apartment immediately to check on things. She found the door to the Locklear apartment open, and she located a piece of stereo equipment just outside the building. Suddenly, the Plymouth returned, so Vines retreated to her apartment. Through her window, she watched the same two men put the piece of stereo equipment into the car. The men left again in the car, but

not before Vines jotted down the license plate number. She later gave it to the police, together with physical descriptions of the two men. Vines was then brought to the station for the purpose of identifying one of the suspects. She was taken to a room in which the suspect was seated. The suspect was requested to stand and turn around, which he did. Vines identi- fied him as one of the two participants in the burglary of Locklear’s apartment. Vines later identified the man at his trial for burglary. Will the in-court identification be tainted by the stationhouse identification?

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Chapter 9 • Identification Procedures and the Role of Witnesses 301

Summary

1. OUTLINE PRETRIAL SUSPECT IDENTIFICATION TECHNIQUES.

Identification procedures are of three types: (1) line- ups, (2) showups, and (3) photographic identifications or arrays. All are bound by the Fourteenth Amend- ment’s due process clause. That is, if they are too suggestive, they will be declared unconstitutional. Lineups and showups are also restricted by the Sixth Amendment’s right to counsel clause, but this clause does not apply to photographic identifications. Identification procedures are not protected by the Fifth and Fourth Amendments because an identification is not considered testimony or a seizure.

2. EXPLAIN THE PROBLEM OF WITNESS MISIDENTIFICATION.

Witnesses are prone to mistaken identification, espe- cially in showup situations. Even lineups and photo arrays can result in mistaken identification. As such, various procedures have been developed to improve identification procedures. Two recent examples include double-blind lineups and virtual officer lineups.

3.SUMMARIZE IDENTIFICATION TECHNIQUES DURING THE TRIAL AND ISSUES INVOLVING WITNESS CREDIBILITY.

In addition to pretrial identification, identification during trial is important. As such, it is subject to a

number of important restrictions. A criminal trial is a carefully choreographed event, so the order of the questioning proceeds in specific stages. The form of questions, even if simply geared toward having a wit- ness identify the defendant, is also significantly restricted. As a general rule, leading questions are not permissible except on cross-examination. Finally, since some witnesses tend to be untrustworthy, steps can be taken to cast doubt on their credibility. This process is known as impeachment.

4. EXPLAIN HOW THE EXCLUSIONARY RULE OPERATES IN THE IDENTIFICATION CONTEXT.

An identification, whether occurring during trial or prior to trial, can be excluded as evidence. First, if an in-court identification is tainted by an improper out- of-court identification, it will be inadmissible. Similarly, if an identification takes place following the illegal arrest and/or search of a suspect, it can be excluded, as well. There are exceptions to these rules, however. Usually, if the identification is suffi- ciently divorced from any prior illegality, it will be admissible at trial.

DECISION-MAKING EXERCISE 9.10

When Is an In-Court Identification Valid?

Valerie DeLuca’s house has been burglarized so many times that she has given up all hope that the police will be able to find the perpetrator. She has told them the burglar’s modus operandi several times and even that he has worn dark clothes and a black ski cap, but the police have still been unable to catch the burglar. Then, one night, the police apprehend a suspicious man, wearing dark clothing and a black ski cap, walking the streets of DeLuca’s neighborhood. They don’t have probable cause but arrest him anyway. They call DeLuca in to the stationhouse, hoping she can identify

the burglar in a lineup. In fact, she is not sure precisely who the burglar is, but she doesn’t tell the police she is uncertain. Instead, she is so desperate to put an end to the burglaries that she plays the odds and identifies one of the men in the lineup. That man is then charged with burglary. Later, at trial, DeLuca identifies the man as the one who burglarized her house on several occasions. Will her in-court identification be valid? In other words, even though her testimony would not be truthful, would her in-court identification of the suspect conform to constitutional requirements?

exclusionary rule and reinforce the notion that the “fruit of the poisonous tree” doctrine applies in limited circumstances—primarily, when an illegal search and/or seizure (as opposed to an improper confession or identification) results in the subsequent seizure of tangible evidence.

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302 Part 3 • Interrogations, Confessions, and Identification Procedures

Key Terms

accrediting 294 Competence 294 Credibility 294 cross-examination 291 direct examination 291

discrediting 294 double-blind

lineup 290 impeachment 295 in-court showup 284

leading question 291 lineup 277 photographic

array 294 rehabilitation 296

showup 277 specific question 291 suggestive lineup 281 tainted

identification 299

Key Cases

Constitutional Restrictions on Identifications

• United States v. Wade, 388 U.S. 218 (1967) • Stovall v. Denno, 388 U.S. 293 (1967) • Manson v. Braithwaite, 432 U.S. 98 (1977) • Schmerber v. California, 384 U.S. 757 (1966) • Hayes v. Florida, 470 U.S. 811 (1985)

Pretrial Identification

• Neil v. Biggers, 409 U.S. 188 (1972) • Moore v. Illinois, 434 U.S. 220 (1977)

• Simmons v. United States, 390 U.S. 377 (1968) • Manson v. Braithwaite, 432 U.S. 98 (1977)

Exclusionary Rule and Identifications

• United States v. Crews, 445 U.S. 463 (1980)

Review Questions

1. Explain how the Sixth Amendment right to counsel applies in the identification context.

2. Explain how due process applies in the identification context.

3. Why are the Fourth and Fifth Amendments not applica- ble in the identification context?

4. Explain the three types of pretrial identification proce- dures. How do they differ from one another?

5. What are some methods of reducing the suggestiveness of a lineup?

6. What is an in-court showup? 7. What does a constitutionally valid photographic array

look like? 8. Explain how a witness is questioned during trial.

9. What is a leading question? Is it possible for the prose- cutor to ask a leading question of a witness who is to identify the suspect in court? If so, how would such a question be phrased?

10. Distinguish between credibility and competence. 11. Distinguish between impeachment and rehabilitation. 12. What is a tainted identification? Why is it important in

criminal procedure? 13. Explain the Supreme Court’s view on identifications

that result from illegal searches and/or seizures. 14. Summarize the tips for being a good witness to criminal

activity. 15. Summarize the tips for being a good witness during

court.

Web Links and Exercises

1. Improving identification procedure: What steps can be taken to improve identification procedures?

Suggested URL: http://www.ncjrs.gov/pdffiles1/nij/ 178240.pdf (accessed February 16, 2011).

2. Wrongful convictions: Read about the causes of wrongful convictions, according to the Innocence Project.

URL: http://innocenceproject.org (accessed February 16, 2011).

3. Double-blind lineups: Read more about making eyewit- ness identification more reliable. Do they improve on traditional lineup procedures?

Suggested URL: http://www.ojp.usdoj.gov/nij/journals/ 258/police-lineups.html (accessed February 16, 2011).

4. Virtual identification procedures: See a video demon- stration with “Officer Garcia,” the virtual officer.

URL: http://www.youtube.com/watch?v=SEhcLQmwtjQ (accessed February 16, 2011). ISB

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