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Identification of Suspects: Lineups and Showups8

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THE PERSISTENCE OF MISTAKEN IDENTIFICATION

IDENTIFICATION AND THE RIGHT TO COUNSEL

The Right to Counsel at Postindictment Lineups

When Does the Right to Counsel at Lineups Attach?

Does the Right to Counsel Apply to Photographic Identification?

IDENTIFICATION AND THE FIFTH AMENDMENT

DUE PROCESS AND EYEWITNESS IDENTIFICATION

LAW IN SOCIETY: REDUCING THE ERROR OF EYEWITNESS IDENTIFICATION

Understanding Memory and Recall

Toward More Accurate Identification

Improving Lineups JUSTICES OF THE SUPREME COURT:

NIXON’S CONSERVATIVES Warren Earl Burger William H. Rehnquist

cross-examination

eyewitness

identification parade

lineup

showup

suggestibility

testimonial evidence

Law enforcement may have the elements of a contest about it, but it is not a game.

—Justice Byron White, dissenting in Massiah v. United States, 377 U.S. 201, 213 (1964)

CHAPTER OUTLINE

KEY TERMS

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THE PERSISTENCE OF MISTAKEN IDENTIFICATION Eyewitness identification is the most important source of truth in most criminal cases and, ironically, the leading source of error that results in the conviction of innocent people. The use of eyewitnesses at every stage of the criminal process is self-evident. A street mugging victim sits in a police car and is asked whether a suspect matches her description. A store clerk at a police station lineup is asked whether each person in the lineup is or is not the armed robber. At a trial, a homeowner sitting in the witness box is asked to identify the burglar; he raises his arm, points to the person sitting next to the defense lawyer, and says, “That’s the man; I’d know him anywhere.”

Honestly mistaken identification is part of commonsense psychology. An attorney conducting a cross-examination of an eyewitness in a criminal trial asks commonsense questions to cast doubt on the accuracy of the witness’s perception. How long did the wit- ness observe the perpetrator? Was the witness wearing eyeglasses? What were the light- ing conditions? The legal system places great faith in the ability of cross-examination to ferret out the truth. A century ago, Dean John Wigmore of Northwestern University Law School called cross-examination “the greatest legal engine ever invented for the discovery of truth.”1 The Supreme Court said that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested” (Davis v. Alaska, 1974).

Nevertheless, it has been known for a century that human identification is fraught with error. Classroom experiments by psychologist Hugo Münsterberg were published in 1908 and dramatically demonstrated that human recall of recent events is filled with errors.2

In 1932, Professor Edwin Borchard of Yale Law School published Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice, which details cases of individuals who were found guilty of felonies and were later proven to be completely innocent.3 Most miscar- riages of justice were caused by mistaken eyewitness identification. In some cases, there was prosecutorial misconduct. The released individuals were sometimes given monetary compensation by special acts of state legislatures. A similar book appeared in 1957 by the jurist Jerome Frank and Barbara Frank, with thirty-four documented instances of innocents convicted in American courts.4 An estimate by C. Ronald Huff, Arye Rattner, and Edward Sagarin put the number of wrongful convictions at almost ten thousand annually—based on responses by Ohio judges and criminal justice officials, of whom 94 percent said that wrongful convictions sometimes occur.5 Another estimate is that “more than 4,250 Americans per year are wrongfully convicted due to sincere, yet woefully inaccurate eye- witness identifications.”6 Hugo Bedeau and Michael Radelet’s exhaustive and systematic study of innocent people convicted of capital or potentially capital crimes found 350 such wrongful convictions between 1900 and 1985 in American jurisdictions, with no indication that the justice system is becoming progressively more accurate.7

News accounts of the exoneration of the innocent appear with astonishing regularity.8 A New York assistant prosecutor charged with attempted rape in 1985 was released when a look-alike confessed.9 In a 1974 New York case, a person was held for a year for armed robbery based on a photo identification but no voice identification. When the victim discovered a year later that the suspect had a thick West Indian accent, the inno- cent man was released.10 In 1990, the New York Times reported that five innocent people convicted in Dallas within a few years had been freed.11 A Roman Catholic priest, Father Bernard Pagano, was mistaken for the “gentleman robber” in Delaware.12 Lenel Geter, a young African American engineer, was convicted of a fast-food franchise robbery, although coworkers testified that he was at work, fifty miles from the robbery site, and he bore little resemblance to the robber’s description. There was “intense national publicity, including a feature story on CBS’s 60 Minutes” before Geter was released.13 Randall Dale Adams, convicted of the murder of Dallas police officer Robert Wood in 1977, had his case brought to light by a riveting documentary film, The Thin Blue Line, produced by Errol Morris. The film exposed a combination of prosecutorial overzealousness and witness

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Identification of Suspects: Lineups and Showups 443

incompetence that generated the conviction and elicited a virtual confession from David Harris, who appears to have been the actual killer.14 Recent books have detailed the nation- ally famous convictions, later shown to be false, of Dr. Sam Sheppard and Rubin “Hurricane” Carter.15

A cursory review of news stories over a three-month period in 2000 disclosed the following:

● In Houston, Texas, DNA tests cleared two men who were wrongfully convicted of rape on the basis of faulty eyewitness testimony.

● In Orange County, California, eighteen-year-old Arthur Carmona spent two years in prison for a robbery that he did not commit. His conviction was based on eyewitnesses who later recanted their testimonies.

● Also in Orange County, three other men were released from prison for serious crimes, two after spending decades behind bars.

● In Norfolk, Virginia, a judge threw out a drug prosecution of a man identified by an under- cover informant as a drug seller—the man had been in jail on the day of the alleged sale— leading state authorities to drop thirty-seven other cases based on the informant’s identification.

● A Boston, Massachusetts, man was freed on the basis of DNA tests after spending ten years in prison for a rape he did not commit.

● In another Boston case, Marlon Passley was released after prosecutors admitted that his murder conviction had been obtained on the basis of mistaken eyewitness identification. Passley had just lost an appeal after spending four years in prison.16

In June 2000, Jennifer Thompson, a rape victim, wrote a moving article detailing her experience of positively identifying the wrong man after making efforts to recall her assailant. DNA tests identified another man, who later confessed to the crime. Thompson wrote, “If anything good can come out of what Ronald Cotton suffered because of my lim- itations as a human being, let it be an awareness of the fact that eyewitnesses can and do make mistakes.”17 Thompson urged Texas to halt the execution of Gary Graham, who was convicted of murder largely on the testimony of a single witness who said she saw him from thirty to forty feet away through her car windshield. No physical evidence linked Graham to the crime. Tests showed that the gun he was carrying was not the murder weapon. Two witnesses who were never called to testify said they had seen the killer—and it was not Graham. He was represented by a court-appointed lawyer who failed to mount a meaningful defense. Despite these substantial indications of doubt, the Texas governor refused to intervene in the pardon process, asserting that “there has not been one innocent person executed since I’ve been governor”; he had presided over 135 executions. Gary Graham was executed on June 22, 2000.18

The number of wrongful convictions can be reduced by administrative and legal means. Administrative changes in how the police investigate cases, interview witnesses, and conduct lineups logically would have greater effect than legal measures. The ability of cross-examination to correct errors of mistaken eyewitness testimony, for example, is lim- ited. By the 1960s, problems with eyewitness identification were sufficiently known to be a concern among criminal justice professionals and lawyers. Nevertheless, very little action had been taken by courts or police departments to systematically investigate wrong- ful convictions and to take appropriate action.

Motivated by this problem, the Warren Court established novel constitutional rules to remedy deficiencies in the identification process. The Court explored three areas: (1) the Sixth Amendment right to counsel during a lineup; (2) the Fifth Amendment right against self-incrimination of a suspect during a lineup or showup; and (3) the Fifth and Fourteenth amendment due process rights of lineup and showup participants. In truth, refined legal procedures, such as providing an attorney at lineups, are marginally helpful in reducing mis- taken eyewitness identification. These procedures do not get at the heart of the problem— the psychology of perception—that mostly leads to the misidentification of defendants.

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On the other hand, given the lack of action on the part of the criminal justice system, the Supreme Court’s involvement raised the visibility of this issue.

As of the late 1990s, serious attention is being paid to changing police identification procedures to improve accuracy and decrease errors. In 1999, at the urging of Attorney General Janet Reno, a National Institute of Justice (NIJ) report, Eyewitness Evidence: A Guide for Law Enforcement, suggested specific guidelines for the conduct of initial reports, the composition of “mug books,” witness interviews, field identification procedures (showups), and lineups. This report was stimulated by substantial psychological research adding to the store of knowledge about identification procedures and by the stunning revelations of wrong- ful convictions generated by forensic DNA testing. The Innocence Project, run by Professors Barry Scheck and Peter Neufeld at Cardozo Law School,19 the exoneration of half of Illinois’s death-row inmates,20 and the publication of the NIJ report, Convicted by Juries, Exonerated by Science, detailing DNA exonerations have brought home to the criminal justice system its responsibility to improve the process of identification.21 (This theme is continued in the “Law in Society” section at the end of this chapter.)

IDENTIFICATION AND THE RIGHT TO COUNSEL The Supreme Court turned its attention to lineup identification in 1967, just four years after Gideon v. Wainwright and one year after Miranda v. Arizona. The tide of the Court’s due process revolution was still riding high, and the lineup cases were a logical sequel. Yet these cases startled the legal community because the issue lacked precedents. Unlike search and seizure, confessions, and the right to appointed counsel, which had been the subject of litigation for decades and which rested on ancient legal principles, the lineup rules were created by imaginative lawyers who, imbued with the innovative spirit of the due process revolution, suggested ways of expanding the frontiers of the Bill of Rights. This annoyed conservative jurists. In 1965, four years prior to his elevation to chief justice of the Supreme Court, Warren Burger, then a judge on the U.S. Court of Appeals, said, “Such ‘Disneyland’ contentions as that absence of counsel at the police line-up voids a conviction are becoming commonplace.”22

The Right to Counsel at Postindictment Lineups In 1967, the Court decided United States v. Wade and its companion case, Gilbert v. California, holding that a postindictment lineup is a critical stage requiring the presence of counsel. In addition, Stovall v. Denno (1967) applied due process fairness principles to lineups. Stovall also ruled that the lineup right to counsel was not to be applied retroac- tively to earlier cases in which lineups were conducted without counsel.

Read Case and Comments: United States v. Wade.

Did Wade require that a lawyer be present when police apprehend a suspect immedi- ately after a crime, based on a victim’s or witness’s description, and show the stopped sus- pect to the victim or witness? This standard practice has the dual benefit of immediately exonerating innocent look-alikes and presenting an identification opportunity to a witness when recall is the strongest. To delay such a showup until a lawyer can be secured can mul- tiply injustices for both the victim and the defendant.23 Faced with the unpalatable possi- bility of extending the right to counsel rule to on-the-street situations, in 1969 the liberal U.S. Court of Appeals for the District of Columbia Circuit carved out an exception to the right to counsel for immediate postarrest showups.24 The need for such an exception became unnecessary after the Supreme Court dealt with the timing of the right to counsel at lineups in Kirby v. Illinois (1972).

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[a] This narrow statement of the issue is linked to the “remedy” in Part V of the opinion. There are other legal issues in the case.

[b] Wade’s indictment prior to the lineup seems like a minor detail. It became an important factor in determining the scope of the right to counsel in later cases.

[c] Additional facts are found in Part IV. Case facts are sometimes scattered through an opinion, making them difficult to read.

[d] Note the two identifications—in the courtroom and at the lineup.

[e] The Court of Appeals, believing that the witnesses might not have identified Wade if they had not participated in the lineup, simply eliminated their in- court identification. Compare the Supreme Court’s remedy in Part V.

CASE AND COMMENTS

United States v. Wade 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)

MR. JUSTICE BRENNAN delivered the opinion of the Court. The question here is whether courtroom identifications of an accused at trial are to

be excluded from evidence because the accused was exhibited to the witnesses before trial at a postindictment lineup conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel. [a]

[In September 1964, a bank was robbed by a man with a small strip of tape on each side of his face. He forced a teller and bank officer, at gunpoint, to fill a pillowcase with money. He escaped with an accomplice who was waiting in a stolen car. In March 1965, Wade and two others were indicted for conspiracy and bank robbery.] [b] Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade’s lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. [c] Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like “put the money in the bag,” the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.

At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. [d] At the close of testimony, Wade’s counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials’ courtroom identifica- tions on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade’s Fifth Amendment rights, “the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights. . . .” [e] * * * We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.

I [The Court ruled that no Fifth Amendment violation occurred by requiring Wade to par- ticipate in the lineup, by placing strips of tape on his face, or by having him repeat what was said at the robbery. Providing physical evidence of one’s identity is not the kind of “testimonial evidence” protected by the privilege against self-incrimination.]

II [This part reviewed the Sixth Amendment right to counsel, deemed indispensable to pro- tect the right to a fair trial. Dissenters said that lawyers had never participated in lineups and had no proper role to play at lineups. In Part II, Justice Brennan replied: “The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then pre- vailing in England of merely advising his client in ‘matters of law,’ and eschewing any

(continued)

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responsibility for ‘matters of fact.’” The Sixth Amendment requires counsel at any critical stage of the criminal proceedings, which can include a lineup if it brings potential substan- tial prejudice to defendants’ rights.]

III The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different—for Sixth Amendment purposes—from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fin- gerprints, blood sample, clothing, hair, and the like. [f] We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and tech- nology is sufficiently available, 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 wit- nesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.

IV But the confrontation compelled by the State between the accused and the victim or wit- nesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. [g] The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. * * * A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of sug- gestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined.” [h] * * * Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” [i]

The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness. * * * It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identi- fication. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. * * * For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identifi- cation for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the wit- ness. Lineups are prevalent in rape and robbery prosecutions and present a particular haz- ard that a victim’s understandable outrage may excite vengeful or spiteful motives. * * * [T]he accused’s inability effectively to reconstruct at trial any unfairness that occurred at

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[f] Taking and analyzing physical evidence is clear-cut, and errors can be ascertained by cross-examination; it is not a critical stage. To the contrary, suggestive identification at the lineup is not clear-cut and cannot be reconstructed by cross- examination.

[g] Should the Court intervene if the problem of misidentification results only from human failings?

[h] “Suggestion” is not simply a human failing. It is something done by the police, thus providing the “state action” necessary for the Court to intervene.

[i] This is a virtual definition of a critical stage; the lineup determines the outcome of the trial.

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the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.

* * * The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the pres- ent case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. [j] The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade “standing in the hall” within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice presi- dent testified that he saw a person in the hall in the custody of the agent who “resembled the person that we identified as the one that had entered the bank.”

The lineup in Gilbert [a companion case], was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other’s presence, a procedure said to be fraught with dangers of suggestion. [k] And the vice of suggestion created by the identification in Stovall was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. * * *

The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused. * * * We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identifica- tion and the suggestibility inherent in the context of the pretrial identification. * * * [l] “[T]he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not ‘come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way . . . .” * * *

* * * [E]ven though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or uninten- tional, and with little or no effective appeal from the judgment there rendered by the witness—“that’s the man.”

* * * [T]here can be little doubt that for Wade the postindictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid [of counsel] . . . as at the trial itself.” * * * Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.” [m] * * * No substantial countervailing policy consid- erations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. [Substitute counsel might also reduce delay.] And to refuse to recognize the right to counsel

[j] This is a “showup” and is highly suggestive of guilt.

(continued)

[k] The “contagion effect” in Gilbert is clear. Stovall is also a showup.

[l] Suggestibility is so well known in medical trials that “double-blind” procedures require the person dispensing the drug or placebo to not know which is which.

[m] The substantive rule of the case is stated here, as well as a reply to the dissenters.

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for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. * * * In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration of taint in the prosecution’s identification evidence. That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice. [n]

Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as “critical.” But neither Congress nor the federal authorities have seen fit to pro- vide a solution. What we hold today “in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.” * * *

V We come now to the question whether the denial of Wade’s motion to strike the court- room identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. [o] We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. * * * Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. * * * A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identi- fication, would render the right to counsel an empty one. [p] The lineup is most often used, as in the present case, to crystallize the witnesses’ identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself—realizing that possible unfair- ness at the lineup may be the sole means of attack upon the unequivocal courtroom iden- tification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification. Since counsel’s presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.

We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States [1963], “‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the pri- mary taint.’ * * * ” [q] Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. [r] It is also relevant to consider those facts which, despite the absence of counsel, are dis- closed concerning the conduct of the lineup.

We doubt that the Court of Appeals applied the proper test for exclusion of the in- court identification of the two witnesses. * * * [The judgment of the Court of Appeals was vacated and the case remanded for further proceedings.]

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CASE AND COMMENTS (continued )

[n] Justice Brennan was three decades ahead of his time. The prosecution is helped by defense counsel who prevent the conviction of innocent persons. Legislation is finally beginning to address lineups.

[o] This part concerns the remedy. How does the Supreme Court’s remedy differ from that of the Court of Appeals?

[p] The courtroom identification is linked to whether the witness is recalling the defendant from the crime or from the lineup.

[q] What is the “primary illegality” in the lineup situation? What is the “exploitation of that illegality”?

[r] What are these factors designed to do?

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[Chief Justice Warren and Justices Black, Douglas, and Fortas concurred but believed that compelling Wade to wear tape and speak at the lineup violated his Fifth Amendment privilege against self-incrimination. Justice Clark concurred in the majority opinion.]

MR. JUSTICE BLACK, dissenting in part and concurring in part. [Justice Black agreed that a lineup is a critical stage at which counsel is required.

However, he found fault with the Court’s remedy (in Part V) on both practical and consti- tutional grounds. He would have allowed the witness to identify the defendant at the trial and voted to uphold the conviction.] [s]

In the first place, even if this Court has power to establish such a rule of evidence, I think the rule fashioned by the Court is unsound. The “tainted fruit” determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a court- room identification due to memory not based on the lineup? What kind of “clear and con- vincing evidence” can the prosecution offer to prove upon what particular events memories resulting in an in-court identification rest? How long will trials be delayed while judges turn psychologists to probe the subconscious minds of witnesses? All these questions are posed but not answered by the Court’s opinion. * * *

MR. JUSTICE WHITE, whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting in part and concurring in part.

* * * I share the Court’s view that the criminal trial, at the very least, should aim at truthful factfinding, including accurate eyewitness identifications. I doubt, however, on the basis of our present information, that the tragic mistakes which have occurred in criminal trials are as much the product of improper police conduct as they are the consequence of the diffi- culties inherent in eyewitness testimony and in resolving evidentiary conflicts by court or jury. [t] I doubt that the Court’s new rule will obviate these difficulties, or that the situation will be measurably improved by inserting defense counsel into the investigative processes of police departments everywhere.

But, it may be asked, what possible state interest militates against requiring the presence of defense counsel at lineups? After all, the argument goes, he may do some good, he may upgrade the quality of identification evidence in state courts and he can scarcely do any harm. Even if true, this is a feeble foundation for fastening an ironclad constitutional rule upon state criminal procedures. Absent some reliably established con- stitutional violation, the processes by which the States enforce their criminal laws are their own prerogative. * * *

* * *

[s] Justice Black also attacked the majority for exercising what he believed was unconstitutional power under the Due Process Clause to make new law.

[t] Justice White argues, in contrast to Justice Brennan, that the problem is not suggestibility but the fallibility of human memory. Thus there is no “state action” and no basis for the jurisdiction of federal courts. This argument displays a belief in federalism.

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When Does the Right to Counsel at Lineups Attach? The lineup in Wade occurred after Wade had been indicted. The issue in Kirby v. Illinois (1972) was whether the right to counsel applied to a lineup that was conducted before a suspect was indicted. There is little doubt that, had the Wade Court decided this issue, the right to counsel would have been extended to preindictment lineups. A holding of a case is the rule of the case that is controlled by its essential facts. Was the timing of the lineup (postindictment) an essential fact of Wade? Justice William Brennan, who wrote the majority opinion in Wade and dissented in Kirby, said no. The majority in Kirby disagreed. What had changed between the years 1967 and 1972 was the composition of the Court. A more conservative Supreme Court, bent on reversing or limiting the individual rights advanced by the Warren Court, set to work in Kirby and similar cases to limit, if not over- rule, expansive Warren Court rulings.

The facts of Kirby were simple. Willie Shard, a robbery victim, was asked to identify two suspects who were detained in a police station two days after the incident. The victim immediately identified the suspects, Thomas Kirby and Ralph Bean, who had been found with the victim’s traveler’s checks and Social Security card. No lawyer was present during the identification. The suspects did not ask for a lawyer, nor were they advised of any right to the presence of counsel. Six weeks later, the suspects were indicted for the robbery. At trial, Shard identified Kirby and Bean and testified to his police station identifications. The Illinois Supreme Court upheld the legality of this identification process. Kirby argued that the benefits of counsel to dispel or record suggestive action by police officers are equally important in a preindictment lineup as in a postindictment lineup. The Supreme Court upheld Kirby’s conviction.

Justice Potter Stewart, who dissented in Wade, wrote the majority opinion in Kirby. The Wade-Gilbert right to counsel was based on the Sixth Amendment, not the Fifth Amendment privilege against self-incrimination. All previous Sixth Amendment cases held that the right to counsel “attaches at the time of arraignment” or the “initiation of judi- cial criminal proceedings.” The right to counsel in Miranda, by contrast, was based on vin- dicating the privilege against self-incrimination. Therefore, reasoned the Court, the Sixth Amendment right to counsel does not apply to preindictment lineups but only to lineups and showups “at or after the time that adversary judicial proceedings have been initiated against him.”

To justify the decision, Justice Stewart noted that

[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. (Kirby v. Illinois, 1972)

If any abuses were alleged to occur during a preindictment lineup or showup, the defendant could urge a court to apply the due process rule that was announced in Stovall v. Denno (1967), which is discussed later in this chapter. The majority opinion was joined by each of the justices who were appointed by President Richard Nixon: Chief Justice Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist.

Justice Brennan’s dissent in Kirby, like his majority opinion in Wade, argued that the right to counsel is designed to ensure a fair trial. Having a lawyer present at a police sta- tion showup is necessary to prevent the suggestibility that influences a witness and thus is crucial to a fair trial. The essence of the Wade-Gilbert rule is that an attorney be present at a pretrial identification confrontation, for the unfairness of suggestibility can equally infect a preindictment or a postindictment showup or lineup. In this regard, “an abstract consideration of the words ‘criminal prosecutions’ in the Sixth Amendment” should not limit the extension of the right to counsel at all station house identification procedures.

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Justice Brennan virtually accused the majority of willfully misconstruing the real meaning of the Wade and Gilbert cases by inflating the importance of the fortuitous circumstance that the lineups in those cases occurred after indictments. Indeed, “every United States Court of Appeals that has confronted the question has applied Wade and Gilbert to prein- dictment confrontations,” as did the appellate courts of thirteen states. Against this, only five states at that time ruled, as did Illinois, that the Wade rule applied only to postindict- ment lineups. Justice Brennan was joined not only by liberal Justices William Douglas and Thurgood Marshall but also by Justice Byron White, who had dissented in Wade. Justice White confirmed Justice Brennan’s hint that the Kirby majority was motivated by conservative ideological activism. He expressed the “judicial conservatism” of stare decisis by noting that Wade and Gilbert “govern this case and compel reversal of the judg- ment below.”

Kirby revealed the Burger Court’s discontent with the Wade rule by limiting it, but also an unwillingness or inability to completely overturn it. The Court nevertheless stood by the Kirby rule in Moore v. Illinois (1977). A rape victim gave the police a description of her attacker. She examined two sets of photographs in the week following the crime and whittled possible suspects down to two or three from two hundred photographs. One of these was of Moore. He was arrested and presented at a preliminary examination the next day to determine whether he should be formally charged by the grand jury. The police accompanied the victim to the preliminary examination during which she was to view Moore and to “identify him if she could.” She positively identified him. The detectives had her sign a complaint that named Moore as her assailant. Moore, unrepresented by a lawyer at this point, was bound over.

Moore challenged the introduction of the identification, arguing that the preliminary hearing “marked the initiation of adversary judicial criminal proceedings against him. Hence, under Wade, Gilbert, and Kirby, he was entitled to the presence of counsel at that confrontation.” The Supreme Court agreed with Moore. Kirby applied the Wade counsel rule not only after indictment but “at or after the initiation of adversary judicial criminal proceedings,” including proceedings instituted “by way of formal charge [or] preliminary hearing.” Thus not only did the showup in the Moore case fall within the direct rule of Kirby, it was obviously a critical stage: Moore faced a state prosecutor at the hearing; it was a hearing at which the charges could have been dismissed; the state had to produce evidence against the defendant at that point or drop the case; and, of course, the defendant was identified at that proceeding.

In addition, the Court made it absolutely clear that the Wade-Gilbert-Kirby rules apply to a showup of one suspect as well as to a lineup of several look-alikes:

Although Wade and Gilbert both involved lineups, Wade clearly contemplated that counsel would be required in both situations. * * * Indeed, a one-on-one confrontation generally is thought to present greater risks of mistaken identification than a lineup. . . . There is no reason, then, to hold that a one-on-one identification procedure is not subject to the same requirements as a lineup. (Moore v. Illinois, 1977)

Finally, the prosecution argued that the victim’s identification testimony should be automatically introduced at trial because there was an “independent source” for it. That is, the victim said that she thought she had seen Moore at a neighborhood bar. The Supreme Court rejected this argument. It ruled that the prosecution cannot violate the Wade-Gilbert rules and then simply allow the defendant to be identified in the “case in chief” based on the theory that the identification was based on the crime or other encounter. The case was remanded to determine whether the victim’s memory was based on the incident or the showup. Justice Rehnquist grudgingly concurred, noting that he would prefer that Wade- Gilbert’s per se exclusionary rule of the lineup/showup identification be replaced with a “totality of the circumstances” approach. In conclusion, although the Supreme Court erected a somewhat artificial distinction in Kirby, it maintained the doctrinal integrity of the Kirby rule in Moore v. Illinois.

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Does the Right to Counsel Apply to Photographic Identification? A year after Kirby, the Supreme Court faced the issue of whether an attorney was required to be present at a postindictment “photographic lineup.” Victims and witnesses are some- times shown single photos of a suspect, in a photographic counterpart of a showup. Photo lineups can be in the form of an array of six photos of similar-looking individuals (a “six- pack”) or a stack of head shots, or photos gathered in “mug books.”

In United States v. Ash (1973), the Supreme Court rejected the Wade-Kirby Sixth Amendment approach to photographic identification and held that under the Constitution’s Sixth Amendment, a lawyer is never required when photographs that include the suspect’s likeness are shown to a witness. Instead, the admissibility of photographs depends on whether their display violated due process fairness.

An informant told FBI agents that Charles J. Ash Jr. had been involved in a bank rob- bery. Prior to pressing formal charges, the agents “showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash’s picture.” Prior to trial, after Ash had been formally charged, the prosecutor “decided to use a photographic dis- play to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and- white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection.” Ash claimed that this process violated his right to counsel at a critical stage of the prosecution. The trial judge denied this claim. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. The trial judge ruled that all five color photographs would be admitted into evidence. The jury convicted Ash. The Court of Appeals applied the Wade-Gilbert rule and held that Ash’s right to counsel was violated when his attorney was not given the opportunity to be present at the postindict- ment pretrial photographic displays.

The Supreme Court, by a six-to-three vote, reversed. Several reasons for the decision can be discerned in Justice Blackmun’s lengthy and murky majority opinion. One reason is that the suspect is not physically present at a photo lineup, and therefore “no possibility arises that the accused might be misled by his lack of familiarity with the law or overpow- ered by his professional adversary” (United States v. Ash, 1973). Because a suspect is not subjected to testimonial questioning at a lineup, this point refers to a scenario in which police have the suspect say more or do more at a live lineup that makes him stand out to the witnesses. This, however, falls logically under the category of suggestibility that can also affect a photo identification, if, for example, an officer pauses at greater length at the suspect’s photo.

Related to this reason is the point that “the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation” where “the function of the lawyer has remained essentially the same as his function at trial” (United States v. Ash, 1973). This means that the Supreme Court is reluctant to extend the right to counsel to settings that do not have some of the attributes of a trial where the lawyer’s forensic skill is used: questioning witnesses, cross-examining, and projecting and analyzing legal arguments. The Court, however, had indeed extended the right to counsel in non-trial-like settings for postindictment lineups (Wade) but illogically drew the line at preindictment lineups (Kirby). The Court clearly did not desire to further expand the right to counsel beyond arraignments, pretrial examinations, and the like, where counsel acts “as a spokesman for, or advisor to, the accused” (United States v. Ash, 1973).

Another point was that although the use of photography in criminal investigation was relatively new, witnesses had been questioned by magistrates and police for hundreds of years without the presence of defense counsel. The Court clearly was concerned that a

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ruling in Ash’s favor could lead to pressure to bring police interviewing under the Sixth Amendment, however remote the possibility.

The Court’s weakest argument was that photo identification is less suggestive than live lineups and can be more easily cured by cross-examination at trial. This point was prominently made by Justice Stewart, concurring, as well as by Justice Blackmun:

A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influ- ences can be readily reconstructed at trial. It is true that the defendant’s photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness’ description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive man- ner, or that by comment or gesture the prosecuting authorities might single out the defendant’s picture. But these are the kinds of overt influence that a witness can easily recount and that would serve to impeach the identification testimony. In short, there are few possibilities for unfair suggestiveness—and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was not present at the photographic display. For this rea- son, a photographic display cannot fairly be considered a “critical stage” of the prosecution. (United States v. Ash, 1973, Stewart, J., concurring)

It seems however that Justice Brennan, dissenting with Justices Douglas and Marshall, had the better argument on this point. In a photo identification, “as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold” (United States v. Ash, 1973). Indeed, Justice Stewart suggested some of the ways in which a police officer, even inadvertently, could suggest that a certain photo is that of the suspect. Without an attorney present to observe the showing, how would it be possible for the defense lawyer to form cross-examination questions that are on the mark? As a matter of logic and experience, Justice Stewart’s views on the ability of cross-examination to detect suggestibility are not very convincing except in the most outrageous examples. He limits his examples only to overt suggestibility and says nothing about other factors discussed by Justice Brennan, including “the manner in which the photographs are displayed to the witness” by, for example, emphasizing the suspect’s photograph by leaving it out longer, arraying it in a way to point it out, and so forth, and by “gestures or comments of the prosecutor at the time of the display [that] may lead an otherwise uncertain witness to select the ‘correct’ photograph.” In this regard, Justice Brennan touched on the powerful psychological effect that is conveyed even by uninten- tional cues: “More subtly, the prosecutor’s inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness’ objectivity” (United States v. Ash, 1973, Brennan, J., dissenting). In these situations, reconstruction of the suggestion is next to impossible.

Justice Brennan’s conclusion was that the Court’s logic was “a triumph of form over substance” (Ash) because in past instances where the Court found that a critical stage existed, requiring the presence of counsel, the essential point was that the stage of the criminal process was one in which unfairness would undermine the fairness of the trial itself. Since, in the view of the dissenters, the uncorrectable suggestibility of the photo- graphic identification would taint the trial, it was a critical stage.

United States v. Ash (1973), like Kirby v. Illinois (1972), is a clear example of the conservative Burger Court’s limiting expansive Warren Court rulings, not by overruling them but by trimming them back or preventing further expansion. The goals of the Court now clearly marked the Crime Control Model over the Due Process Model of constitutional analysis specified by Professor Herbert Packer.25 (See Chapter 1.) The majority was con- cerned with creating rules that might interfere with the work of police and prosecutors as the “war on crime” became a seemingly permanent feature of American political and

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social life. The dissenters displayed greater concern with the overall fairness of the process and were willing to make the investigation process less efficient for the purpose of reduc- ing the possibility of wrongful convictions. Indeed, as later research and analysis indi- cated, numerous miscarriages of justice resulted from improper photo identification.26

IDENTIFICATION AND THE FIFTH AMENDMENT United States v. Wade (1967) held that “[n]either the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination.” This holding can be divided into two rules. The first, unanimously supported by the Court, is that the simple display of a person at trial or at a lineup so that he or she can be identified as a suspect does not violate the Fifth Amendment priv- ilege against self-incrimination. The Fifth Amendment prohibits only the compulsion of testimonial evidence:

We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence hav- ing testimonial significance. It is compulsion of the accused to exhibit his physical characteris- tics, not compulsion to disclose any knowledge he might have. (United States v. Wade, 1967)

Wade raised another argument that was accepted by four dissenting justices: Justice Hugo Black in a separate dissent, and Justice Abe Fortas in a dissent joined by Chief Justice Warren and Justice Douglas. Wade, along with other lineup participants, was required to wear strips of tape on each side of his face, as the robber had, and to speak words that the robber had spoken. The second self-incrimination ruling by the Wade majority is that this kind of compelled behavior, which goes beyond the simple display of a suspect’s face, does not violate the privilege either.

Justice Brennan’s dissent relied on the precedent of Schmerber v. California (1966). Blood was drawn from Schmerber by medical personnel after he was arrested for a drunk driving fatality. The Supreme Court held that the self-incrimination principle was to pro- tect individuals from divulging information “of a communicative nature.” This means that the Fifth Amendment privilege prohibits the state from forcing a person to admit guilt by spoken words, actions that convey meaning, or writings that convey a sense of guilt. The state, however, in enforcing the law, may have access to any physical evidence that is probative and that may be obtained without violating due process or Fourth Amendment protections.

The Schmerber principle has allowed the use of different kinds of physical evidence, including blood samples; handwriting exemplars;27 voice exemplars;28 body evidence such as fingerprints, photographs, hair samples, and cell scrapings from which DNA tracers can be identified; and one’s name.29

The dissenters thought that what Wade was required to do “is more than passive, mute assistance to the eyes of the victim or of witnesses. It is the kind of volitional act— the kind of forced cooperation by the accused—which is within the historical perimeter of the privilege against compelled self-incrimination.” Nevertheless, as Justice Brennan pointed out for the majority, the precedent of Holt v. United States (1910), authored by Justice Oliver Wendell Holmes Jr., upheld the right of the state to require a suspect at a lineup to wear an article of clothing that was worn at the crime.

DUE PROCESS AND EYEWITNESS IDENTIFICATION The Supreme Court, in Stovall v. Denno (1967), ruled that the suggestiveness of a lineup or showup must be guided by the Fifth or Fourteenth Amendment’s Due Process Clause, because unnecessarily suggestive pretrial identification procedures are fundamentally unfair.

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Fairness is a flexible test that requires a court to examine the totality of the circumstances. A due process rule, therefore, is more a general standard than a clear-cut or bright-line rule. As a result, in due process litigation, the Court frequently is faced with finely differentiated fact situations that require careful examination.

Stovall v. Denno (1967) demonstrates that the requirement of nonsuggestive identifi- cation procedures is not absolute. The necessities of law enforcement may override the purity of the identification process. In this case, a physician, Dr. Behrendt, was stabbed to death in the kitchen of his home at midnight on August 23. His wife, also a physician, entered the kitchen and jumped at the assailant. He knocked her to the floor and stabbed her eleven times. Physical clues led the police to Stovall, and he was arrested on the afternoon of August 24. The wife was hospitalized for major surgery to save her life that same day.

The police, without affording [Stovall] time to retain counsel, arranged with her surgeon to permit them to bring petitioner to her hospital room about noon of August 25, the day after the surgery. Petitioner was handcuffed to one of five police officers who, with two members of the staff of the District Attorney, brought him to the hospital room. [Stovall] was the only Negro in the room. Mrs. Behrendt identified him from her hospital bed after being asked by an offi- cer whether he “was the man” and after petitioner repeated at the direction of an officer a “few words for voice identification.” None of the witnesses could recall the words that were used. Mrs. Behrendt and the officers testified at the trial to her identification of the petitioner in the hospital room, and she also made an in-court identification of petitioner in the courtroom. (Stovall v. Denno, 1967)

A federal appellate court, on a habeas corpus petition, reversed the state conviction on the ground that the eyewitness identification violated Stovall’s right to counsel. The Supreme Court, in a majority opinion by Justice Brennan, reversed this part of the holding and decided in Stovall that the Wade-Gilbert rule did not apply retroactively, concerned “that retroactive application of Wade and Gilbert ‘would seriously disrupt the administration of our criminal laws.’” The remaining issue was whether the conviction should be overturned because the identification procedure “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law” (Stovall v. Denno, 1967).

Justice Brennan, noting that the “practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,” nevertheless ruled against Stovall and allowed the introduction of the identification made in the hospital room.

Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “He is not the man” could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station lineup, which Stovall now argues he should have had, was out of the question. (Stovall v. Denno, 1967, quoting the Court of Appeals decision)

Although the showup in Stovall was surely suggestive, under the circumstances—which included the reasonable possibility that the only eyewitness to the serious crime might soon die, the impossibility to construct a lineup, and the fact that the suspect was not cho- sen at random but was tied to the crime scene by physical evidence—the choice was between a suggestive identification procedure or none at all. These circumstances resulted in the conclusion that the showup in this case was not fundamentally unfair.

A clear example of a lineup that violated due process was Foster v. California (1969). Foster, a thin, six-foot-tall robbery suspect, wearing a leather jacket similar to the robber’s, was placed in a lineup with two other men who were approximately five-foot-five and were not wearing leather jackets. Despite these discrepancies, the witness could not identify Foster,

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so he was brought into a room with the witness and made to speak. “Even after this one- to-one confrontation [the witness] still was uncertain whether petitioner was one of the robbers: ‘Truthfully—I was not sure,’ he testified at trial.” In a second lineup a week later, Foster was the only individual from the first lineup. At this point, the witness was con- vinced. Justice Fortas’s opinion, finding that due process was violated, relied on the element of reliability: “The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [Foster] whether or not he was in fact ‘the man.’ In effect, the police repeatedly said to the witness, ‘This is the man.’ . . . This procedure so undermined the reliability of the eyewitness identification as to violate due process” (Foster v. California, 1969).

The Supreme Court refused to hold that the showing of a suspect’s photograph to crime victims during the investigation of a crime, while the suspect was still at large, violated due process (Simmons v. United States, 1968). Although such a procedure is necessarily sugges- tive, “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” (Simmons v. United States, 1968). Any risk of misidentification can be corrected at trial through cross-examination.

The Supreme Court has substantially reduced the protection offered by the due process test in the last two due process cases decided by the Supreme Court. These cases no longer allow the use of showups only when there is a real exigency, as in Stovall v. Denno, and have established the rule that identification resulting from a suggestive showup may be allowed into evidence if the suggestibility is offset by strong indicia of reliability.

Neil v. Biggers (1972) concerned a rape conviction based on evidence consisting in part of the victim’s visual and voice identification of Biggers at a station house showup seven months after the crime. The victim had been in her assailant’s presence for fifteen minutes to a half hour and had directly observed him indoors and under a full moon out- doors. She testified that she had “no doubt” that Biggers was her assailant. She previously had given the police a description of the assailant. Over a period of seven months, the vic- tim viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between thirty and forty photographs, but she did not identify any of these. The police called her to identify a suspect at the police station who was being held on another charge; they could not locate individuals at the city jail or the city juvenile home fitting Biggers’s unusual physical description, so they conducted a showup instead.

On federal habeas corpus, the lower federal courts held that the confrontation was so suggestive as to violate due process. The Supreme Court reversed and held that the evidence had properly been allowed to go to the jury. The Court in Biggers summed up earlier cases to establish general guidelines concerning the due process rules concerning identification.

. . . It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” [Simmons] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the like- lihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disap- proved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gra- tuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

What is less clear from our cases is whether, as intimated by the district court, unnec- essary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be

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excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive con- frontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. (Neil v. Biggers, 1972)

With this in mind the Court turned to evaluating the totality of circumstances in Biggers to determine whether his due process rights to fundamentally fair procedures had been followed:

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description 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, 1972)

On one hand, the procedure was suggestive; the police were not fully diligent in searching for lineup participants, and seven months had elapsed between the crime and the positive identification. On the other hand, the victim had ample opportunity to observe her assailant under good light; she was a practical nurse by profession, which implies that she was trained to make accurate observations; her description to the police was complete, includ- ing the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice; and over the seven-month lapse she had “made no previous identification at any of the showups, lineups, or photographic showings,” indicating that her “record for reliability was . . . a good one, as she had previously resisted whatever suggestiveness inheres in a showup.” On balance, the identification did not violate Biggers’s right to due process in an identification.

The final case in this series, Manson v. Brathwaite (1977), generated somewhat more specific criteria for evaluating the Biggers factors. The facts in Manson were that Glover, a narcotics undercover police officer, and Brown, an informant, went to a sus- pected apartment building in Hartford, Connecticut, during daylight, to make a controlled narcotics buy. Glover and Brown were observed by backup officers D’Onofrio and Gaffey. Glover and Brown knocked on a third-floor door in an area illuminated by natural light from a window in the hallway. A man opened the door; Brown asked for “two things” of narcotics; Glover handed over a $10 bill and observed the man in the apartment; the door closed; a moment later, the man opened the door and handed Glover two glassine bags of heroin; Glover was within two feet of the seller and observed his face.

At headquarters, Glover, who is African American, described the seller to D’Onofrio as “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.” D’Onofrio thought that Brathwaite might be the seller and left a photograph of him at Glover’s office. Two days later, Glover viewed the photo- graph for the first time and identified Brathwaite as the seller. At the trial, eight months after the sale, the identification photograph was received in evidence without defense objection. Glover said he had no doubt that the person in the photograph was the seller, and he made an in-court identification. No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.

The Connecticut Supreme Court upheld Brathwaite’s conviction, saying that no “substantial injustice resulted from the admission of this evidence.” On a habeas corpus petition appeal, the federal Court of Appeals ruled that the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary, suggestive, and possibly unreliable. The Supreme Court reversed.

In this case, the viewing of the single photograph left for Glover was suggestive and unnecessary, since D’Onofrio could have prepared a photographic array. The Court noted that the showup in Biggers also had been suggestive and unnecessary but maintained the

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rule that this alone did not require the per se exclusion of such identifications. The Court did recognize, indeed, that a per se exclusionary rule would tend to make identification more reliable and lessen the opportunity of mistaken identification. The more lenient “totality of the circumstances” approach, while possibly allowing more instances of injus- tice, was instead upheld. The Supreme Court acknowledged that the per se approach was more likely to deter improper police procedures. On the other hand, it said that the totality rule also guards against impropriety, since a suggestive showup or lineup might be excluded. Finally, the per se approach made it more likely that a guilty party would go free. On balance, the Court continued to uphold the due process “totality of circumstances” approach in evaluating the admissibility of suggestive identification procedures, again indicating a preference for the crime control model over the due process model of criminal justice.

The Court then analyzed each of the Biggers factors and found that the “indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself.”

1. The opportunity to view. The facts indicated that Glover had natural lighting and two to three minutes to observe Brathwaite from two feet away.

2. The degree of attention. Glover was a trained on-duty police officer specializing in narcotics enforcement, was an African American, and could be expected “to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor” and testify about this in court.

3. The accuracy of the description. Glover’s description was given to D’Onofrio within minutes after the transaction and included the seller’s race, height, and build, the color and style of his hair, and the high cheekbone facial feature. It also included a description of the clothing the seller wore. D’Onofrio reacted positively, and two days later, when Glover was alone, he viewed the photograph and identified its subject as the narcotics seller.

4. The witness’s level of certainty. Glover, when questioned about whether the photograph was that of the seller, testified: “There is no question whatsoever.”

5. The time between the crime and the confrontation-identification was very short. The Court concluded that “we cannot say that under all the circumstances of this case there is ‘a very substantial likelihood of irreparable misidentification.’”

LAW IN SOCIETY

REDUCING THE ERROR OF EYEWITNESS IDENTIFICATION

The obligation that police, prosecutors, judges, and juries have to detect, prosecute, and convict the guilty carries an obligation not to convict the innocent. Studies persis- tently show that eyewitnesses are frequently mistaken in their identifications of suspects and that half of the wrongfully convicted are victims of mistaken eyewitness identification.30 The criminal justice system has perenni- ally accepted wrongful convictions based on misidentifi- cation as the inevitable failing of a human system. Lawyers believed, with some justification, that properly conducted criminal trials keep mistaken identification to a minimum. An experienced defense attorney with suffi- cient time and resources to investigate a case prior to

trial and skillful in cross-examining witnesses was suffi- cient to ferret out the truth. This faith might have been justified up to the beginning of the twentieth century. The growing findings of modern scientific psychological research, however, demonstrate the variability of human memory, and legal scholars have become more aware that an alarming number of completely innocent people are wrongfully convicted.31

By the 1960s, this knowledge led the Warren Court to augment the legal protections of the common law jury trial with constitutional rules meant to prevent wrongful conviction. This effort had limited success as the more conservative Burger Court restricted the right to counsel at identification procedures (Kirby v. Illinois, 1972; United States v. Ash, 1973; Manson v. Brathwaite, 1977). Of greater significance, the right to counsel during identification

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procedures and due process rules concerning suggestiveness are crude tools to prevent and correct misidentification.

Since the 1960s, several factors have laid a founda- tion for a major breakthrough in the problem of wrongful conviction. First, extensive research by psychologists has led to better explanations of human identification and misidentification, establishing a scientific foundation for improvements. They have also designed studies to find out which kinds of questioning and identification procedures are more likely to provide accurate identification. This research has been disseminated to the legal community, making it more aware of its shortcomings, although prose- cutors believe in the accuracy of eyewitnesses far more than do defense lawyers.32 At the same time, celebrated cases of wrongful conviction, such as those of Rubin “Hurricane” Carter, Dr. Sam Sheppard, and Randall Adams, and the dramatic moratorium on executions by Illinois governor George Ryan after half of those on death row were exonerated, have sensitized the wider public to the fact that misidentification is a persistent problem.

The factor that has had the greatest impact since 1990 has been DNA testing. It has revealed that the worst fears of critics have been justified: An unacceptably high proportion of people who are charged with crimes and con- victed are innocent. The DNA breakthrough is not a pre- scription for complacency. The authors of Actual Innocence, who run the Innocence Project at Cardozo Law School, write:

Most of the lessons of the DNA era have nothing to do with high-tech gizmos or biotechnical wizardry. “Jurors should get innocence training,” says Kevin Green [a wrongly convicted man]. They need to be told: “‘You’re doing this because we have to find the truth. The police haven’t necessarily found the truth. The district attorney hasn’t found the truth. Only you can.’”33

The authors note that England established “an official Criminal Cases Review Commission that investigates claims of innocence.”34 Barry Scheck and Peter Neufeld, attorneys who have done as much as anyone to force authorities to allow inmates with credible claims to have DNA tests, warn that these tests are not a panacea for cor- recting wrongful convictions:

In a few years, the era of DNA exonerations will come to an end. The population of prisoners who can be helped by DNA testing is shrinking, because the technology has been used widely since the early 1990s, clearing thousands of innocent suspects before trial. Yet blameless people will remain in prison, stranded because their cases don’t involve biological evidence. . . .

From Borchard’s review of cases stretching back to the dawn of the American republic, all the way to the dawn of the twenty-first century, the causes of wrongful convic- tion remain the same. Clarity is manufactured about

moments of inherent confusion. Witnesses swear they can identify the man who held the gun or knife. Police officers then coax or force confessions from suspects they believe guilty. Prosecutors bury exculpatory evidence and defense lawyers sleep on the job.35

Steps can and should be taken to improve the accuracy of identification throughout the investigation and trial process. Before a sound program of accurate identification can be put in place, a foundation of scientific knowledge about the nature of memory and recall is required.

Understanding Memory and Recall

Research has generated a better understanding of human perception, memory, and recall than “common sense,” even if an integrated theory of perception has not been fully developed.36 This information helps us better under- stand eyewitness testimony.

An important starting point is the wide agreement in perception research that eyewitness testimony is often unre- liable. This contradicts the beliefs of many people and the experience of jurors:37 Under experimental conditions, such as a staged crime before a class, “witnesses have been proven to be remarkably inaccurate.”38 An experiment by Robert Buckhout had a New York television news program run a staged robbery for twelve seconds. A six-man lineup was then shown, and viewers were invited to call in to pick out the perpetrator. Over two thousand viewers called in, and only 14.1 percent picked the correct man, a result that was no better than a random guess.39 Because psychological experiments can modify the elements of perception and recall, the percentage of accurate recall in various experi- ments has varied from no better than chance to 90 percent.40

A field experiment by John Brigham and colleagues assessed the accuracy of facial recall in a real-life setting.41

Two men, one white and one African American, entered seventy-three convenience food stores within five minutes of one another, posing as customers. One paid for a pack of cigarettes entirely with pennies and asked for directions. The other asked for directions after fumbling around for change. Two hours later, two men pretending to be law interns asked the clerk to identify each “customer” from two photo arrays, one of six whites and one of six African Americans. The overall rate of accurate identifications was 34.2 percent, which increased to 46.8 percent when instances of “no identification” were omitted. This is sig- nificantly higher than the 16.7 percent rate (one out of six) that would be expected by random guessing, but it also confirms a large number of incorrect identifications. The correct recall of convenience store clerks fell to chance when the “law interns” presented the photo arrays more than twenty-four hours after the “customers” left the store.

This study also found, in accord with other research, that identification accuracy of a person of one’s own race is

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higher and that the ability of white clerks to identify the African American “customer” was significantly related to each clerk’s amount of cross-racial experience. The African American clerks in this study had higher accuracy rates than the white clerks: They were 13 percent more accurate in identifying the white “customer” and 23 percent more accurate in identifying the African American “customer.” As expected, recognition was higher for the “customers” who were more attractive or distinctive and from lineups using larger pictures.

Elizabeth Loftus’s summary of research findings notes that the memory process is selective. Humans do not simply record events like a videotape recorder but process information at the acquisition stage when the event is per- ceived, during the retention stage, and again at the retrieval stage during which a person recalls stored information.42

A complex event consists of a vast amount of information; an individual’s sensory mechanism selects only certain aspects of the visual stimulus. People are therefore much better at remembering salient facts of an event than periph- eral details.43

Acquisition is affected by event factors: retention time and frequency (the longer or more frequently some- thing is viewed, the more information is stored) and the type of fact observed (people have great difficulty in assessing speed and time; violent and emotional events produce lower accuracy of memory).44 “Studies also show that the amount of time perceived as going by is overesti- mated under conditions of danger and that the overestima- tion tends to increase as the stress increases.”45 Witness factors also affect observation. The “role that stress plays at the time a witness is perceiving a complex event is captured in the Yerkes-Dodson Law[:] . . . that strong motivational states such as stress or other emotional arousal facilitate learning and performance up to a point, after which there is a decrement.”46 Much social- psychological research demonstrates that individual bias affects perception, whether the bias is a result of situa- tional expectations, personal or cultural prejudice, or expectations from past experience.47

The retention stage is affected by the time lapse between the event and recall. More unnerving, the memory of an event can change. “Postevent information can not only enhance existing memories but also change a witness’s memory and even cause nonexistent details to become incorporated into a previously acquired memory.”48 This underlines the danger of suggestibility, so prominent in the Wade-Gilbert-Stovall trilogy of cases. Studies have shown that (1) the likelihood of recall of an event is enhanced sim- ply by mentioning it; (2) postevent suggestion can cause the memory to compromise between what was originally seen and what is reported; and (3) mentioning a nonexistent object to a witness can cause the witness to later report having seen it. Not only simple facts but also subjective

recollections about the violence of an event can be modified by postevent suggestion.

Verbal cues subtly influence retention. Subjects shown a filmed traffic accident were asked if they saw bro- ken glass, although there was none. Seven percent of those asked about cars that “hit” reported broken glass, compared to 16 percent of those asked about cars that “smashed” into each other. Both original information and external informa- tion acquired after the event become merged into one mem- ory. Labeling a situation influences memory, as does the practice of witnesses guessing at information if they are not sure of their original memory. The dangers of inaccuracy during memory retention are worsened by a freezing effect: A person who makes a statement about an event tends to more strongly remember the statement at a later time, and this applies to objectively true elements of the original event as well as false information.49

Similar memory modification occurs during the retrieval stage. Accuracy of recall is increased when a per- son relays it in a familiar and comfortable setting and in a narrative form rather than answering controlled questions. Increased status of the questioner enhances the quantity and accuracy of responses. The wording of questions influ- ences responses. An experiment demonstrated that more witnesses who were asked to describe “the” event said they saw something not present in a film compared to those who were asked about “an” event.50

Toward More Accurate Identification

It is utopian to believe that wrongful convictions can be entirely eliminated. Nevertheless, police agencies can apply practical knowledge to substantially reduce this injustice. As noted earlier, in 1999 the NIJ issued a forty- four-page report, Eyewitness Evidence: A Guide for Law Enforcement, compiled by a group of law enforcement professionals, defense lawyers, and psychologists. It does not provide the background research but, rather, lists pre- cise procedural suggestions for law enforcement agencies. The guide goes a long way toward establishing national criteria, although it has some weaknesses. Professor Donald Judges’s thorough review of the guide states that it is “faithful to research findings in its recommendations to avoid instruction bias.”51 On the other hand, he faults it for not recommending double-blind and sequential lineup procedures.52

The guide offers recommendations to police in five areas: (1) the initial report of a crime, (2) the preparation of “mug books” and composites and the instruction of wit- nesses who view them, (3) follow-up interviews of witnesses, (4) field identification (showup) procedure, and (5) lineup procedures for eyewitness identification of sus- pects. Under lineups, procedures are recommended for composing photo and live lineups, instructing witnesses

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prior to lineups, and conducting identification procedures. The guide indicates that the NIJ is planning a second phase of the eyewitness project to produce training criteria for these procedures. It notes that no validation studies have been authorized and that changes may be recommended in the future.

In general terms, the guide’s recommendations are designed to improve the accuracy of police interviewing and identification. In regard to the initial interviews and follow-up interviews with witnesses, the guide adopts many research findings of what is known as the cognitive interview.53 Police are instructed to ask open-ended ques- tions and to augment answers with closed-ended questions, to avoid asking suggestive or leading questions, to separate witnesses, to instruct witnesses to avoid discussing details of the incident with other witnesses, to encourage wit- nesses to volunteer information without prompting, to encourage witnesses to report all details—even if they seem trivial, to caution witnesses not to guess, to avoid interrupting witnesses, and so forth. According to Judges, the guide misses some points:

For example, in its statements of principle or policy, the Guide does not explicitly state the concepts underlying the components of the cognitive interview, including the witness-centered control of information. Other specific rec- ommendations from CI [Cognitive Interview] are either lack- ing or only obliquely referred to, such as inviting narrative presentation, witness-compatible questioning (i.e., tailoring questions to witnesses’ mental representation of the event, such as a witness who viewed the perpetrator from the side or rear only), and the varied-retrieval method (e.g., having the witness recall the event in reverse chronological order).54

The remainder of this section reviews some methods that experts have proposed to improve lineups.

Improving Lineups

Based on extensive psychological research, the adoption of the following procedures are likely to reduce the number of erroneous identifications made during lineups:

● Establish double-blind procedures. The dangers of sug- gestibility or contamination of witnesses by even subtle or unintended emphasis is very well established and uni- formly supported by psychological research.55 Judges urges that “eyewitness identification procedures should be conducted only by persons who are ignorant of which lineup member is the suspect. . . . Use of ‘double-blind’ procedures—which has long been standard practice in human-subject research—would preclude the possibility of contamination even from inadvertent or subtle feed- back cues from the investigator.”56

● Conduct lineups in a sequential manner, not simultane- ously. The problem with the more typical simultaneous lineup, where all the individuals are viewed while

standing together, is that it forces the witness to engage in relative (comparative) judgment (“Does this person look more like the suspect than that person?”) instead of absolute judgment (“That’s the man.”). A review of research found that “critical tests of this hypothesis have consistently shown that a sequential procedure produces fewer false identifications than does a simul- taneous procedure with little or no decrease in rates of accurate identification.” This manipulation, because it directly addresses the cognitive source of the problem, is an especially important component of the set of rec- ommendations advanced by researchers in this area for reducing the risk of false identifications.57

● Utilize lineup context cues. Lineup context cues improve the accuracy of lineup identifications. Brian Cutler and Steven Penrod recommend

that lineup procedures should ensure the use of voice samples and should show the lineup mem- bers from three-quarter poses and, whenever pos- sible and appropriate, allow the witness to watch the lineup members walking in and out of the observation room. Such cues should also be taken into consideration when photographs are taken for the purpose of mug books.58

● Construct lineups fairly. This seems to be axiomatic, but police in the past have been tempted to construct the lineup so that the suspect stands out. The NIJ guide urges fairness. Lindsay and Wells note that as nonsuspects (“foils”) in a lineup come to resemble the suspect more, more witnesses can be expected to erroneously identify the foils, suggesting a trade-off between a high probabil- ity of selecting the suspect in unfair (low-similarity) line- ups and a high probability of selecting an innocent person in high-similarity lineups. Using experimental lineups with a “criminal” present and a “criminal” absent, Lindsay and Wells found that the choice of a “guilty” sus- pect fell from 71 percent in unfair lineups to 58 percent in fair ones in the criminal-present mode. However, choos- ing the “innocent suspect” (a look-alike to the “criminal”) fell from 70 percent to 31 percent in the criminal-absent mode. Lindsay and Wells developed diagnosticity ratios that indicated mathematically that the fair lineups improve the relative quality of both identifications and no identifications over the unfair lineups. The practical value of this experiment is to dissuade police from setting up unfair lineups in the hope of highlighting suspects who they are “certain” are guilty.59 After all, since the selec- tion and conviction of an innocent person leave the real criminal at large, law enforcement, prosecution, and defendants share a real desire to make lineups more fair.

● Have an officer of the same race as the suspect construct the lineup. Research shows that same-race identification tends to be more accurate than recognition of other-race faces. If other-race faces tend to look similar, there is a risk that, for example, a white officer who constructs a lineup of a black suspect and black foils for black witnesses may construct a lineup of faces that look alike to him but

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appear dissimilar to the witnesses.60 This point is conjec- tural and has not yet been subject to rigorous research.

● Use expert witnesses or closing arguments to rebut errors about eyewitness identification. This has been strenuously resisted by prosecutors for fear that experts would undermine juror confidence in eyewitnesses. Courts and scholars are split on whether to allow experts to testify. Huff, Rattner, and Sagarin would always allow expert witnesses on the issue of reliability, while Judges is skeptical of its value.61 Attorneys could utilize closing statements to inform jurors about known information about eyewitness identification. For example, an area in which research contradicts common sense is witness certainty and accuracy of a prior description. Many studies show little or no correlation between the confi- dence that witnesses express in their certainty and the accuracy of their observations, while others do.62 The common finding of no confidence-accuracy correlation is counterintuitive; in fact, the Supreme Court in Neil v. Biggers (1972) and Manson v. Brathwaite (1977) relied

on confidence as one of five indicia of certainty, thus possibly injecting an element of factual injustice into some cases. An expert could be useful in bringing this to the attention of a jury, as well as alerting them to other possibly relevant issues.

This list does not exhaust all of the ways in which identi- fication procedures can be made more accurate. The NIJ guide is only a first step, and it has flaws. It is probably the case that very few law enforcement departments conduct lineups in a double-blind fashion, and given the disruption of routine, it is not expected that many will change rapidly. It is worth keeping in mind that research will continue to refine knowledge in the area of witness perception. The hopeful sign is that for the first time seri- ous national attention has been given to the issue. Time will tell whether real advances will be made in making the identification process more accurate or whether these efforts will soon be forgotten.

SUMMARY

Eyewitness identification is an important source of truth in the justice process but is often mistaken and leads to the unwarranted conviction of innocent people. Legal rules are less important in preventing mistaken eyewitness identifica- tion than proper police procedures. Identification can be made by identifying one suspect in a procedure known as a “showup.” A lineup—live or photographic—is a police iden- tification procedure in which a witness views a suspect to the crime along with others with similar physical characteristics.

The Supreme Court has established rules for the admissibility of eyewitness identification. United States v. Wade (1967) held, under the Sixth Amendment, that a suspect is entitled to counsel during a postindictment police lineup. Counsel’s role at lineup is to prevent sugges- tiveness or to detect and record it. A witness may not iden- tify a defendant in a trial after viewing the suspect in an uncounseled postindictment lineup unless the government can show by clear and convincing evidence that witness’s memory is based on observations made at the time of the crime. The Wade rule is based on the potential for police suggestiveness at a lineup.

In Kirby v. Illinois (1972), the Court limited this right to counsel only to postindictment lineups. A lawyer is not required at a preindictment lineup. The Court held that suspects are entitled to counsel only after an adversary judicial proceeding has been directed against them. Counsel is required at a lineup held after a defendant has been processed at a preliminary examination.

There is no right to counsel at photographic identifi- cation procedures, whether held before or after indictment.

A photo array is determined not to present the same dan- gers of suggestibility as a lineup, any suggestive behavior can be cured by cross-examination at trial, and the defen- dant is not present at a photo identification, eliminating the need for counsel to protect the defendant’s rights.

The Fifth Amendment protection is against com- pelled testimonial evidence and therefore does not prevent the state from exhibiting the defendant at a lineup or trial for identification purposes. Further, the suspect may be required to wear distinctive clothing or to speak words to improve his or her identification.

Due process requires that identification procedures be conducted fairly. The due process rule is a totality of the circumstances test; the Court has rejected a narrower per se rule. In deciding whether a defendant’s due process rights have been violated, the necessity to conduct a showup may be taken into account. A showup is justified if a witness might die or if any suggestibility is offset by procedures that ensure reliability. Pictures of a lone suspect may be shown to witnesses prior to arrest to aid in apprehension. Identification after a grossly unfair lineup in which the sus- pect is made to stand out violates due process and results in the suppression of the identification.

Five factors may be taken into account in determining whether a suggestive showup has been offset by indicia of reliability: (1) the witness’s opportunity to view the suspect at the scene of the crime; (2) the witness’s degree of atten- tion; (3) the accuracy of the witness’s original description; (4) the witness’s level of certainty; and (5) the time elapsed between the crime and the identification procedure.

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LEGAL PUZZLES

HOW HAVE COURTS DECIDED THESE CASES?

Suggestiveness

8–1. Shortly after 11 A.M. on a June day, a work crew on New York Avenue in Atlantic City heard shots ring out. Most of the workers dove for cover, but Philippou and Richardson, frozen in their tracks, saw a man running down an alley onto New York Avenue, chased by another man. A cab appeared, and the first man jumped in. Three more shots were fired. Philippou watched in shocked attention. He saw the second man holding his still-smoking black 9mm gun and then tuck it into his waistband. A dark blue Honda Accord with tinted windows and New York license plates drove out of the alley, picked up the gunman, and drove off.

The Atlantic City police soon arrived. Philippou and Richardson separately described the gunman as an African American man about six feet tall with short hair and wear- ing black clothing. Philippou described the driver as an African American man with dreadlocks and gave a partial license plate number for the Honda. The descriptions of the men and the car were immediately sent out over the police radio.

An officer on bicycle duty nearby at Kentucky Avenue heard the transmission and saw an automobile matching the description in a hotel parking lot, only a block from the scene of the shooting. A parking validation ticket inside the windshield indicated that the car had been parked there just a few minutes earlier at 11:39 A.M. The car hood was still warm to the touch.

After viewing surveillance camera tapes from the hotel lobby where the men paid for the parking tickets, offi- cers fanned out to search the area. Two men fitting the description of the shooter and the driver were seen on a “people mover,” which transported people on the Boardwalk between casinos. Police took the men, Wilson and Hall, into custody.

In the interim, Philippou and Richardson were taken by police to the hotel parking lot, where they identified the Honda. A police car pulled up with Wilson and Hall in the backseat; the workers positively identified Wilson as the gunman and Hall as the driver. A set of car keys found in Wilson’s pocket was used to open the Honda. Inside was found a 9mm handgun, which was matched to spent shell casings found in the alley at the crime scene.

The same day, Jean Docteur, an Atlantic City taxicab driver, came to the station and told Atlantic City police that the back passenger side of his taxicab had been hit by bullets. He said he picked up three men sometime about 11 A.M. and drove them to New York Avenue. One of the men got out and walked down an alley, while the others

remained in the cab. After Docteur heard gunshots, the men in the cab told him to drive away. He claimed that no one got into his cab after the gunshots.

Was Wilson’s identification by Philippou and Richardson less than an hour after the incident while he was handcuffed in the back of the police car so unduly sug- gestive as to violate his due process rights?

Held: No. The appellate court held that, under all the circumstances, the showup identification of Wilson by the workers was not unduly suggestive, even though the suspects were clearly in custody. The men were reliable citizen-eyewitnesses, and the identification occurred almost immediately after the shooting. It was necessary for the police to take swift action to make an identifica- tion when shots were fired in a congested area and the public risk was great. Here the witnesses gave detailed descriptions of the men and their vehicle that were corroborated by the motel security videotape. The two witnesses were asked to observe the suspects and see whether they could make an identification. They were not told much beyond that. The reliability of the identifica- tion was therefore strong. The finding of the trial judge as to the reliability of the witnesses is entitled to consider- able weight.

State v. Wilson, 362 N.J. Super. 319, 827 A.2d 1143 (2003)

Suggestiveness

8–2. Four “repo men” were towing a truck from a house at 4 A.M. on a June morning when a man with a rifle on the porch of the house fired a shot, yelling, “Put the truck down.” The repossession men disengaged the truck. One called the police as the truck backed out of the driveway. The man on the porch pointed the rifle at the truck and ordered him to put the phone away. As the tow truck moved down the driveway toward the street, the shooter fired four or five more shots, hitting and killing one of the repo men.

Two of the repo men described the shooter to the police soon after and were shown photo arrays that included Frank Howard. Neither one picked him out, and one repo man picked a filler. Howard was arrested in September. The preliminary examination, scheduled in September, was twice postponed and finally held in October. At each session, Howard was brought out of lockup and seated at the defense table. At the first two ses- sions, it is not clear that any of the witnesses had a signifi- cant opportunity to view him. At neither proceeding did law enforcement officers say anything to the witnesses to suggest that Howard was the killer.IS

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About one hour following the second adjournment, the police conducted a lineup with defense counsel pres- ent. Howard was three inches taller than the fillers and was the only suspect with the high-fade haircut that the wit- nesses later said was distinctive. The three surviving repo men were separately asked to identify the killer. After viewing the lineup, each witness was taken to a different room in order to prevent any communication between them. All three picked Howard as the killer.

Were the viewings of Howard at the adjourned pre- liminary examinations so suggestive as to taint the identifi- cations of him at the live lineup?

Holding available from instructor.

Suggestiveness

8–3. One night, Anderson and a female companion, Engstrom, broke into a house occupied by Raymond Ward and his girlfriend, N. B. At gunpoint, Anderson forced Ward and N. B. into a bedroom, ordered N. B. to lie on the floor, placed the gun against Ward’s head, and demanded money. When Ward hesitated, Anderson shot him in the neck. Ward then surrendered all of his available money (some $140 in cash). N. B. hid in the corner of the bed- room until the assailant left the house. When police were called, N. B. described the robber as a black man with a shaved head, and although she observed the robber face-to- face, she did not indicate how well or for how long. N. B. did not provide additional details of the male robber’s description, although she provided details concerning his female accomplice.

Anderson and Engstrom were arrested after a police chase. The police brought N. B. to the scene of the traffic stop to see if she could identify them. During the showup, N. B. was not able to get a good view of Anderson’s facial features because he would not stand up straight. He insisted on bending over from the waist so that his face was pointed toward the ground. Anderson, a black male, was in handcuffs, flanked by two uniformed police officers. Despite Anderson’s posture, N. B. positively

identified him as the male robber because of his shaved head and clothing.

Was the showup suggestive? Was it necessary? Was the showup evidence admissible?

Holding available from instructor.

Civil Liability

8–4. Gregory was convicted of two rapes that occurred in 1992. After spending seven years in prison, he was exoner- ated after DNA testing proved that he was not the source of the biological evidence. In one case, Officer Tarter visited Ms. S (a victim) with a photopak that included Gregory’s picture and five others, but only Gregory’s had a recent date on it. Ms. S was unable to make any identification from the photopak. Thereafter, Officers Tarter and Greer asked Gregory to come in for a lineup in the presence of Ms. S. By the time the plaintiff and his attorney arrived at the station, Tarter had taken no affirmative steps, beyond securing the presence of Ms. S, to effectuate a lineup. Lineups take at least an hour to arrange and can take days if the suspect has unique characteristics. Tarter never informed Gregory or his lawyer, police supervisors, or the prosecutor that Ms. S had failed to pick Gregory’s picture out of a photopak or that Ms. S’s description of her assailant was inconsistent with the plaintiff’s physical appearance.

After Gregory arrived at the station anticipating a lineup, Tarter instead asked him to agree to a one-on-one showup with Ms. S. He agreed and signed a preprinted “waiver” form consenting to the showup. Ms. S identi- fied Gregory at the one-on-one showup, and he was arrested immediately.

A civil suit against a police officer overcomes a police officer’s qualified immunity against the lawsuit if the offi- cer’s actions violated “clearly established law.” Did Officer Tarter violate Gregory’s due process right against suggestive showups so as to result in the officer’s civil liability?

Holding available from instructor.