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Criminal Procedure

Identification Procedures. Chapter 9. Establishing the Facts. Proving a crime was committed is a lot easier than proving who committed it. Despite technological advances, eyewitness identification remains the most widely used way to identify and prove the guilt of strangers (perpetrators that

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Criminal Procedure

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    1. Criminal Procedure 7th Edition Joel Samaha Thomson-Wadsworth Publishing

    2. Identification Procedures Chapter 9

    3. Establishing the Facts Proving a crime was committed is a lot easier than proving who committed it. Despite technological advances, eyewitness identification remains the most widely used way to identify and prove the guilt of strangers (perpetrators that victims don’t know).

    4. Mistaken Eyewitness Testimony The risks of mistaken identification are high, even in ideal settings. Most common identification procedures don’t take place in ideal settings. It is estimated that about half of all wrongful convictions resulted from mistaken identifications by eyewitnesses.

    5. Memory and Mistaken Identity of Strangers Memory problems lead to victim misidentification of “stranger” criminals. Psychologists usually separate memory into three phases: Acquisition of memory Retention of memory Retrieval of memory

    6. Acquisition of Memory Acquisition of memory refers to the information the brain takes in at the time of the crime. The brain doesn’t record every little detail. Perceptions trump reality. We all pay selective attention to what’s going around us.

    7. The Accuracy of Observation The accuracy of witnesses’ observations depends on: Length of time to observe Distractions during the observations Focus of the observations Stress during the observations Race of the witness and the stranger

    8. Retention of Memory Retention of memory refers to the information the brain stores between the time of the crime and the identification procedure. Memory fades most during the first few hours after an event. As witnesses’ memory fades, their confidence in their memory rises. Judges and juries attach a lot of weight to confident witnesses.

    9. Retrieval of Memory The information retrieved from memory at the time of the identification procedure consists of two types. Recall—witnesses are given hints and asked to report what they saw. Recognition—witness are shown people or objects and asked if any were involved in the crime.

    10. Retrieval Errors There are two types of retrieval errors: Errors of omission—failure to recall a key detail Errors of commission—picking an innocent person from among those presented.

    11. The Power of Suggestion Most misidentifications result from both natural memory imperfections and suggestion. Suggestion is most powerful during the retention and the retrieval phases. Loftus’s “memory bin” research has provided much of what we know about the power of suggestion on witnesses’ memories. Police identification procedures increase the power of suggestion.

    12. Identification Procedures Law enforcement uses three major procedures to help witnesses identify suspects who are strangers to them: Lineups Show-ups “Mug shot” photo identifications

    13. Lineups Lineups are the least often used and the least unreliable. Their reliability depends on their makeup and the procedures used. The power of suggestion is one of the biggest threats to proper lineup procedures. It’s difficult to shake witnesses’ confidence once they make identifications, even if they’re wrong.

    14. Recommendations for Lineup Makeup The International Association of Chiefs of Police (IACP) recommends that lineups include: Five or six participants Similar race, ethnicity, and skin color Similar age, height, weight, hair color, and body build Similar clothing Reality often falls short of this.

    15. Recommendations for Reducing Suggestion Recommendations to reduce the influence of suggestions include: Provide might-or-might-not-be-present instruction. Use a blind administrator. If the witness identifies the suspect, immediately ask the witness how sure he or she is of the identification. Use sequential, not simultaneous, presentation.

    16. Show-Ups Show-ups are less reliable than lineups but used more frequently. The three common situations in which courts are most likely to admit show-up evidence are: Accidental encounters between witnesses and suspects Emergencies Suspects on the loose

    17. Mug Shots “Mug shot” (photo) identification is the least reliable, yet most widely used, method of identification. The two-dimensional nature of photographs enhances the inaccuracy of identifications made from them.

    18. The Constitution and Identification Procedures Until 1967, the courts, including the Supreme Court, adopted a “hands-off” approach to admitting evidence of lineups, show-ups, and photo identification. It was up to juries to assess their reliability, not courts. Stovall v. Denno (1967) established the due process basis for challenging identifications on constitutional grounds.

    19. Reliability is the Linchpin For identification evidence to be dismissed on due process grounds, defendants have to prove two elements by a preponderance of the evidence: The procedure used to identify was unnecessarily and impermissibly suggestive. The totality of circumstances proves that the procedure created a very substantial likelihood of misidentification.

    20. “Very Substantial Likelihood of Misidentification” Five factors determine witnesses’ reliability: Their opportunity to view defendants at the time of the crime Their degree of attention at the time of the crime Their accuracy of description of suspects prior to the identification Their level of certainty when identifying suspects at the time of the identification procedure The length of time between the crime and the identification

    21. DNA Profile Identification DNA can potentially identify individuals or absolutely exclude them as suspects. The most widely used test, called DNA fingerprinting, compares crime scene samples of DNA to suspects’ samples. Reliability issues arise not from technology but from DNA testing procedures.

    22. Legal Standards for Admitting DNA Evidence There are three legal standards for admitting DNA profiles as evidence: Frye test—admissible if technique has gained general scientific acceptance. Frye plus—admissible if technique has gained general scientific acceptance and the particular testing used followed accepted scientific techniques. Federal Rules of Evidence—admissible if the relevance of the evidence outweighs any tendency to hurt unfairly the defendant’s case.

    23. Correct Identification from DNA Correct identification based on DNA depends on answers to three questions: Is a reported match between the sample at the scene of the crime and the sample from the suspect a true match? Is the suspect the source of the trace of DNA left at the scene of the crime? Is the suspect the perpetrator of the crime?

    24. Problems with use of DNA Problems with use of DNA evidence in court include: Mistakes do happen. The match might be coincidental. Prosecutors, experts, and jurors exaggerate the weight of DNA evidence.

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