The Law Governing Identification Evidence: Mistaken Eyewitness Identification and Convicting Innocent Persons

1. Chapter 13 The Law Governing Identification Evidence

2. Evidence Needed to Convict of a Crime • To convict a person of a crime, the government must prove: • That the crime charged did occur (proof of corpus delicti) • That the defendant committed or was a party to the crime charged

3. Evidence Needed to Convict of a Crime (Cont.) • Identification of the defendant as the person who committed or was a party to the crime must be made in all criminal cases. • This can be done by direct orcircumstantial evidence, or a combination of both direct and circumstantial evidence.

4. The Problem of Mistaken Eyewitness Identification • This can happen because our memories are not like video cameras, neither capturing nor retaining details. • Studies have found eyewitness identification is less reliable when the witness is a different race than the person identified. • Many innocent persons are mistakenly charged or convicted based on mistaken identification.

5. The 2008 Study of Innocent Persons Mistakenly Incarcerated • DNA evidence cleared the 200th innocent person mistakenly convicted in 2007. • Statistics involving mistakes include: • 12 years average served in prison • 79% the result of mistaken eyewitness ID • 55% the result of faulty forensic evidence • 18% involved testimony of police informants • 16% false confessions admitted at trial

6. 2008 Study (Cont.) • More than 90% of those exonerated by DNA were convicted of rape, murder, or both. DNA is often available in these crimes of violence because there is usually hair or bodily fluids left at the crime scene. • DNA testing and evidence is available in less than 10% of violent crimes. • Over 75,000 persons annually are brought to trial in the U.S. based on eyewitness identification.

7. What is Being Done About the Problem of Convicting Innocent Persons? • When the innocent are convicted, guilty individuals are free to commit more crime. • Some steps to lessen mistakes have been suggested. They include: • Police need to be cautious about use of eyewitness identification. • Prosecution needs to screen cases thoroughly. • Judges, prosecution, and juries need to demand higher burdens of proof.

8. Suggested Corrective Steps (Cont.) • Courts should permit more expert testimony. • Corroborating evidence should accompany eyewitness ID. • Witnesses should be separated and interviewed separately.

9. Procedures, Limitations Used in Pretrial Identification • Composite sketches can be used when suspect is unknown. • When police lack probable cause for an arrest or exigent circumstances are present, a showup (where a victim or witness views a suspect singly, not in a group) is admissible.

10. Procedures, Limitations (Cont.) • When a suspect is in custody or has been charged with a crime, lineups are used. • When police have photos of a suspect, photo arrays can be shown (must have six or more persons and must be alike in age, race, size, and dress).

11. Other Identification Circumstances • Identification might occur in an inadvertent confrontation by a witness or a victim, or • An in-court identification.

12. The importance of obtaining prior descriptions of offenders • It is important that investigating officers have the witnesses give them as detailed a description of the offender as is possible, as soon as possible, after the crime is reported. • The officer should assist the victim and the witness in searching their memories for details of physical appearances and clothing, no matter how insignificant such details may seem.

13. How do Descriptions of the Suspect Help officers? • They can give the police reasonable suspicion to perform “stops” in the neighborhood and elsewhere • The descriptions may be compared to descriptions given by witnesses and victims.

14. How do Descriptions of the Suspect Help Officers? (Cont.) • Detailed descriptions matching the defendants can significantly increase the reliability of identifications made later by victims and witnesses. • Testimony by the investigating officers (and victims/witnesses) in court concerning prior descriptions provides important evidence for the juries and judges.

15. Showup Limitations • The U.S. Supreme Court has generally held that showups should not be used except when necessary, and • When police lack probable cause, or • When necessary and exigent circumstances are present, or • When a suspect is in possession of property recently stolen from the victim.

16. Situations Allowing Showups • The showup does not create a very substantial likelihood of irreparable misidentification and the suspect is in custody for another crime, or • If the victim or witness knows the offender, but police aren’t sure they have the right person in custody, or • If a victim or witness to the crime give a unique description of the suspect.

17. Determining the Reliability of Identification Evidence: Neil v. Biggers Guidelines • When eyewitness identification evidence is presented, defense lawyers can cross-examine the ID witnesses, and • Can argue, in summation, as to factors causing doubts in the accuracy of the identification.

18. Lineups • Lineups are fairly formal, and usually occur after charges have been filed and occur in a police station instead of “in the field.” Suspects DO have the right to an attorney at this point.

19. Using lineups to obtain identification evidence • Judges’ rules for lineups: • Lineups should be used whenever practical and must be used in situations where showups would not be authorized. • Lineups not only minimize suggestions but also increase the reliability of the identification evidence. • They are used to test recognition in a manner that avoids suggestiveness.

20. Key Cases Reflecting Lineup Problems • U.S. v. Wade 388 U.S. 218 • Essentially, right to attorney after formal charges have been filed, which includes “lineups.” • Gilbert v. Calif. 388 U.S. 263 • Reaffirmed right to counsel being present at the lineup. Also set guidelines for lineups to be followed by the police.

21. Cases (Cont.) • In Foster v. CA 394, U.S. 40, the issue was that the two lineups were so suggestive of the defendant’s guilt that they denied due process.

22. Recommended Lineup Procedures • Lineups should be sequential (one person at a time) rather than simultaneous (group), and • There should be a Double-Blind Administrator (the supervising officer of the lineup) who has no involvement in the case or knowledge of the suspect.

23. National Council of Judges Rules for Lineup Procedures • A reasonable notice of lineup to the suspect and his/her attorney • At least six persons in the lineup who are approximately the same in age, race, size, and dress • All participants in the lineup might be requested to speak certain words (for voice identification) • No one but the witness to indicate the suspect • Witness/victim to view only one person at a time

24. Photo “Lineups” • Suspect is not present; only their photograph is viewed • The court has said the police must use at least 8 “suspects” to compare from • Witnesses must view the photo’s independently of any other witnesses • The photographic array must be maintained for court purposes

25. Photo “Lineups” (Cont.) • Photographs must not be “suggestive” to identify the suspect. • Photographs should be shown one photo at a time and the person showing the photos should not have knowledge of which photo is the suspect.

26. Obtaining identification evidence by other means • Sketches can be done by an artist or with identi-kit with the assistance of one witness or the input of a number of witnesses. • Surveillance cameras, cell phones, cameras, and camcorders • Unusual features: tattoos, scars, etc. • Clothing • Voice identification

27. Obtaining Evidence by Other Means (Cont.) • Spectrograms/“voice printing” • Fingerprint and DNA banks • Amber Alert System • Biometrics

28. Using Biometrics for Identification and Authentication • Due to so many stolen and false identities for identification and crime prevention purposes, biological reference systems are now being used. These include: • Iris (eye) • Hand-based geometry • Voice recognition • Facial recognition

29. Courtroom Identification • During criminal trials, courtroom identification of the defendant by witnesses often occurs.