Andrew Fulkerson, JD, PhD Criminal Procedure Chapter 9 Identification Procedures

2. Identification Procedures lineups show-ups picture identification

3. Identification Lineups: witness attempts to identify suspect in a group Show-up: witness attempts to identify suspect alone Picture identification: witness attempts to identify suspect from a group of photographs

4. Eyewitness Identification generally poor �greatest single threat to the achievement of our ideal that no innocent man shall be punished.� estimated that half of all wrongful convictions are due to eyewitness error.

5. Misidentification perception � information received by brain at time of crime memory � information stored in the brain between time of crime and the lineup, show-up or picture identification. recall - information retrieved from memory at time of lineup, show-up or picture identification.

6. Identification Suggestion is a contributor to mistaken identifications. normal failures of perception and memory vulnerability to unintentional suggestion individual expectations and thought processes affect visual memory

7. Identification Attention contributes to mistaken identification people only selectively pay attention to events around them selective attention creates gaps in memory

8. Identification accuracy of memory affected by: length of time witness observed the stranger distractions taking place at time of observation focus of observation stress to witness during observation race of witness and the stranger

9. Identification The longer a witness observes a person, the better the identification Time estimates are very inaccurate Physical descriptions are inaccurate Lighting affects perception Stress is a distorting factor Identifying persons of a different race is difficult

10. Identification - Problems Memory fades most during the first few hours after event Then stays stable for several months But witness confidence increases even though reliability has decreased

11. Identification - Problems Juries place great weight on confidence of witness, even though research proves that confidence is not related to accuracy

12. Power of Suggestion Research indicates the mind stores everything about an event in the same �file� (like a computer file folder) Even if information comes from third parties Later they draw on this additional information during identification process

13. Power of Suggestion As witnesses retell story they embellish without being aware As they retell story to friends, family and the prosecutor they become more confident and confidence is passed on to jury, even though information is not accurate

14. Power of Suggestion Witnesses treat lineups and show-ups as multiple choice test with no �none of the above� answers Feel they have to select one Primed for suggestion (even if not intentional by police)

15. Power of Suggestion Fact that police have arranged lineup makes witness feel that one of them is the offender or they wouldn�t be there Once witness identifies suspect, they are unable to change their mind or appear unsure, even if they are wrong

16. Constitution and Identification Process Unreliable identification procedures have been challenged as violating Constitutional protections. 5th Amendment self-incrimination 6th Amendment right to counsel 5th & 14th Amendment due process

17. Lineups Reliable only if participants similar in appearance Inter. Ass�n of Chiefs of Police standards: 5-6 participants same sex, race, similar age similar height, weight, skin color, body build similar clothing

18. Lineups U. S. Supreme Court 2-step test for determining whether lineups meet due process requirements. D must prove lineup, show-up or photo array was unnecessarily and impermissibly suggestive. Court must decide if totality of circumstances shows the suggestive procedures create a very high likelihood of misidentification.

19. Lineups Totality of the circumstances witness opportunity to view D�s at time of crime witness degree of attention at time of crime witness accuracy in describing D�s prior to identification witness level of certainty when identifying D at time of identification length of time between crime and identification procedure

20. Showups Identifications of a single person Much less reliable than lineups � more suggestive

21. Showups Situations where courts allow showups witness accidentally runs into suspects emergency where witness is hospitalized suspect not in custody � officers cruise crime area with witness

22. Photo Identification Least reliable identification procedure is use of photo displays (Called Photo lineup if more than one photo) (Called photo show-up if only one photo) Two dimensional nature of photos distorts their accuracy. Photo displays are the most common form of identification

23. Photo Identification Morrison v. Braithwaite, 432 U.S. 98 (1977)

24. Identification Procedures-Refusal to Cooperate Consequences Prosecutors can comment on fact of refusal at trial Suspects who refuse can be held in contempt Police may conduct identification procedure over suspect�s objection. May use such force as is necessary to complete procedure.

25. DNA Identification Can identify or exclude suspects where DNA evidence is found at crime scene DNA is molecule in every person�s chromosomes Chromosomes are in nucleus of white blood cells, sperm cells, cells around hair roots, and saliva cells. DNA testing compares nuclei of cells found at crime scene with similar DNA samples from suspects

26. DNA Identification Most commonly used DNA test is DNA fingerprinting or profiling Measures fragments which vary from person to person If samples have different lengths from those of suspect, suspect is excluded. If samples are of same length, the samples might have a common source. To reduce element of chance, tests measure 6 or more fragments

27. DNA Identification Challenged by experts. Validity is suspect unless variables of test are replicated People v. Castro experts challenged quality of test by state�s lab State�s lab acknowledged test did not produce a match Most courts admit DNA, but standards for admission vary

28. DNA Identification Frye standard-DNA evidence admitted if technique sufficiently established to have gained general acceptance in the particular field

29. DNA Identification Frye plus standard- in addition to gaining general acceptance, admissibility requires showing the testing laboratory used accepted scientific techniques in analyzing forensic standards

30. DNA Identification Federal Rules of Evidence standard- test is whether relevancy of evidence outweighs tendency of evidence to unfairly prejudice D.

31. DNA Identification Relevancy plus standard- adds Frye standard to the Federal Rules of Evidence standard

32. DNA Identification Correct identification of suspects by DNA testing, regardless of the standard, depends on the following: Is a reported match between sample at scene and sample from suspect a true match? Is the suspect the source of the trace of DNA left at the scene? Is the suspect the perpetrator of the crime?

33. DNA Identification - Errors Technical errors enzyme failures salt concentrations dirt spots All produce misleading patterns

34. DNA Identification - Errors Human errors contaminations Mislabelings Misrecordings misrepresentations case mix-ups errors of interpretation

35. Validity of DNA Testing Professor Jonathan Koehler, University of Texas says use of population statistics to determine probability of a match is false. Impact of DNA and other scientific evidence is substantial Survey of jurors reported that 25% of jurors said they would have voted not guilty if not for the introduction of scientific evidence. Survey of judges and lawyers revealed that 75% believed that judges gave more credibility to scientific evidence than other types of evidence.