Written by attorney Richard Wagner

Problems With Eyewitness Identification in California Criminal Cases

A. Types of Eyewitness Identification Evidence in a criminal case may include an identification by a person claiming to be an eyewitness to the crime.

Identification evidence may be obtained different ways.

The first identification by a prosecution witness is normally made outside the courtroom. It may occur at a "lineup." This is where a formal exhibition of a group of suspects is shown to the witness.

Other times a witness is shown a group of photographs (a "photographic lineup") or one photograph (a "photographic showup") of the suspect.

The witness may also be asked to later identify the defendant in court from the witness stand.

B. Human Reliability Problems and Weaknesses. Identification evidence is subject to attack. Regardless of how an eyewitness identification occurs, there is always the danger the identification is based on an original misperception of the events or corrupted by later occurrences. Courts have long recognized the fundamental weakness of identifications based on human perception and recall.

There is also a huge body of scientific and legal literature exploring the dangers of professed eyewitness identification. However, since a mistaken identification may be made by an honest witness, such evidence is compelling to cops, and a jury or a judge.

It is important to understand the problems and weaknesses with eyewitness identification and to determine carefully whether these identifications occurred under reliable conditions and according to the Constitution.

C. Constitutional Limitations. An attack on eyewitness identification may be based on the Constitution. A suspect cannot refuse to participate in a lineup or other identification procedure based on the privilege against self-incrimination (right to remain silent). The Courts have ruled the privilege does not apply to such procedures. The privilege against self-incrimination only protects a person from being compelled to communicate or testify on criminal matters, and does not ban the use of the suspect's physical characteristics as evidence against him.

However, the due process standard of the Constitution requires identification methods be fair and reliable. Identity evidence gathered by an impermissibly suggestive identification procedure that gives rise to a very substantial likelihood of irreparable misidentification is unconstitutional.

Courts focus on the overall reliability of the identification evidence. The courts have concluded that it is the overall fairness of the identification which must be determined. The fairness or reliability of the identification must be judged, in each case, on the basis of the "totality of the circumstances" in which the identification occurred.

D. Suggestive Factors. A suggestive factor is something which suggests to the witness the police have already identified a particular person as the party guilty of the crime, or which makes the witness more inclined to pick out a particular person on the basis of factors other than an independent memory of the incident.

To be unduly suggestive, it must be established that something made the defendant stand out from the others in a way that suggests the witness should select the defendant.

Courts have ruled these following suggestive factors affect the accuracy of an identification:

(1) Only one person in a lineup has the physical characteristics of the defendant; (2) Only one person in a lineup is obviously nervous; (3) Only one person in a lineup is wearing distinctive clothing of the description given by the witness; (4) Photographs have different colors, backgrounds, or dates which emphasize one person or associate one person more closely with an incident; (5) Labels on photographs suggest a particular person has committed past crimes; (6) Only one person in a voice lineup has a particular accent or tone; (7) Police comments indicate they believe they have caught the criminal; (8) Identification is made in the presence of other witnesses; (9) It might be suggestive to reuse the same photograph of the defendant in successive lineups, or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup. (10) Only the defendant's name and identification is printed on the photographic display, and that is printed right underneath the defendant's photograph.

Even if one of these suggestive factors is present, however, suppression of the identification is not warranted if the identification is nevertheless reliable under the totality of circumstances. On the other hand, the following have been ruled not to be impermissibly suggestive identification procedures:

(1) A victim views photographs, including one of the defendant, then identifies the defendant in a lineup; (2) A victim views more than one set of photographs, each of which includes a photograph of the defendant, at least when different photographs of the defendant are used in the different photographic lineups and the different lineups are separated in time; (3) A victim views one set of photographs, which contains more than one photograph of the defendant; (4) The defendant is the only person appearing in both a display of photographs and a subsequent lineup; (5) A victim is asked to identify property in a property lineup, and then immediately shown a lineup; (6) The defendant is placed in a lineup with people not nearly identical in appearance; (7) The defendant is not alone dressed in a striking manner; (8) The defendant wears a clothing item of the same color as that recalled by the witness as being worn by the perpetrator, particularly if the item itself was different; (9) In a lineup, the defendant is made to stand on books concealed from the viewer to increase the defendant's apparent height to equalize the heights of the lineup participants. (10) At a photographic lineup, the victim, after picking out a photograph of the defendant, asked for a side profile so that the victim could be sure, and the officer then complied and showed a side profile. (11) The defendant is wearing an orange shirt while the other subjects in the photographs are wearing a variety of other shirts, and nothing about the defendant's orange shirt identifies it as jail clothing. (12) The witnesses write their names on the backs of the particular photographs they identify, after each witness makes his or her selection.

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