POLICE IDENTIFICATION PROCEDURES
"The value of identity is that it comes with purpose" (Richard Grant)

    There are a number of distinct proceedings and procedures that take place at what might be called the pretrial stage of criminal justice.  Although it may seem like a recap of well-known procedures, we are concerned here with those processes (investigative procedures) usually involving police detectives.  History, established state actions, and a long line of Supreme Court interpretations have given us settled procedural law in this area. Determining what part of the Constitution governs these procedures is no easy matter (e.g., guarantees regarding identification, bail, asset forfeiture, discovery, and testimony are not specifically mentioned in the Constitution). The general thrust is that certain due process and right to counsel safeguards apply in any process that is "critical" to a prosecution or "adversarial" in nature (U.S. v. Wade 1967). Due process is the concept which applies most directly to identification procedures, and it's customary to point out the following Constitutional sources of pretrial procedural protections:

    Let's discuss these Constitutional "safeguards" in order. The 4th Amendment right to be free from search & seizure does not apply directly, but only indirectly, via an interpretation of unreasonableness as invasiveness. The stomach-pumping and blood-extracting cases of Rochin v. California (1952) and Schmerber v. California (1966) best illustrate the Court's reasoning that certain commonplace medical occurrences involving no risk, trauma, or pain are reasonable and can be used to secure evidence without the consent of the person.

    The right to 5th and 14th Amendment due process means simply that the procedure must be fair. Courts follow a totality of circumstances approach in determining if something at the pretrial level is fair or unfair, and there have been additional standards developed over whether procedures (like lineups) are "impermissibly suggestive" (Neil v. Biggers 1972). The 5th Amendment safeguard against self-incrimination does not usually apply to pretrial procedures since the purpose at this stage is to get identification, not testimonial evidence. The Kirby rule (from Kirby v. Illinois 1972) even says that a suspect is not entitled to a lawyer in face-to-face confrontations with victims or witnesses unless they have been formally charged with a crime (a distinction often made in textbooks between pre-indictment lineup and post-indictment lineup). Another important 5th Amendment concern is double jeopardy protection, and although "jeopardy attaches" only when the jury has been sworn in or the first witness takes the stand, there are enormous implications for pretrial procedures.

    The 6th Amendment right to counsel is best understood by referring to the Wade-Gilbert rule, which comes from U.S. v. Wade (1967) and Gilbert v. California (1967) which requires that the defendant have an attorney present at any "critical" stage of a criminal prosecution. This rule covers identification procedures on a person where there has been an initial decision to charge them with a crime. States differ on exactly when the right to counsel triggers; most conclude that filing of a complaint is sufficient; others require the issuance of an arrest warrant. A suspect charged with one offense and only suspected of another offense can usually be subjected to a lineup on the suspected offense without benefit of attorney.

    The 8th Amendment prohibits excessive bail and fines. Note that it does not guarantee the right to bail, only the right to be protected from excessive amounts of bail. The general rule is that a bail amount or fine is excessive if it is out of proportion to the offense committed (U.S. v. Harper 1989). A court is allowed, of course, to consider the needs of compensating society and the government (court costs), and it's normal for a fine to be more than the exact amount of damage (for retributive and deterrent purposes), but it's excessive if the fine is, say, $100,000 for an offense involving only $500.

    The penalty for any improper identification procedure is exclusion of that evidence at trial, but under some circumstances, the court may allow an in-court identification by a witness previously involved in irregularities if there is clear and convincing proof that the witness has a source of knowledge independent from the improper procedure. Such proof might involve having known the accused beforehand or a strong case being made for how compelling a reliable identification is.

IDENTIFICATION PROCEDURES

    Identification is often the hardest part of a police investigation. In cases where the offender is caught red-handed, there's no identification problem. Nor is there any problem if the suspect confesses. In other cases, the police must rely upon eyewitness identification and testimony, arguably the weakest link in the whole criminal justice process. Best guesses are that about half of all wrongful convictions are the result of eyewitness error. Eyewitnesses are necessary because the rules of evidence require circumstantial evidence (such as that which links an offender to the scene of the crime) to be corroborated by testimonial evidence; and also because there's a constitutional right to confrontation by one's accusers - and this means any witnesses at the scene as well as those who helped out the police in an investigation.  There are various exceptions to the confrontation right, such as those involving juveniles and confidential informants, but police have historically conducted lineups or facilitated other forms of pretrial confrontations in order to satisfy constitutional requirements.  Such practices are ways to clear possibly innocent people from further suspicion.

    As mentioned previously, the Kirby rule governs pre-indictment identifications and the Wade-Gilbert rule governs post-indictment identifications. Let's talk about the pre-indictment stage for a moment. At this point, the suspect is in custody and has not been formally arrested or charged yet. They have no right to a lawyer at this point. They can be compelled to participate in a lineup against their will. Some states give the police statutory authority to do this; other states require getting a court order; and still other states require proof of probable cause. In any event, the penalties for refusing to participate in a pre-indictment lineup can be severe. It's the same as a contempt of court charge where the suspect is held indefinitely (under special judicial orders) until they cooperate. When the police need to "round up" ordinary citizens off the street to stand for a lineup, they usually get voluntary cooperation or a court order. The court order in this situation uses a balancing test in which the public interests of law enforcement must outweigh the privacy interests of any person picked up for this purpose.

    Now, let's consider a post-indictment identification.  At this point, it's clear that the government intends to prosecute because a "complaint" has already been filed and a case folder on the suspect is sitting in the prosecutor's office.  The identification procedure could have been delayed for various reasons, such as the time for a preliminary or grand jury hearing having passed. At this stage, the suspect is entitled to the services of an attorney. The attorney's mere presence does not satisfy the Wade-Gilbert rule. Counsel's purpose is to ensure that any identification procedure is fair, to act as a check on the inherent unreliability of eyewitnesses, and to have firsthand knowledge of what went on in order to conduct an intelligent cross-examination at trial or point out any irregularities at a later suppression hearing.  This is clearly a more efficient use of counsel.  A suspect can waive their right to counsel, and if there's any delay in finding or obtaining the person's lawyer, a substitute or stand-in attorney can be used. An attorney is allowed to make suggestions that might improve the fairness, but in no way is the attorney allowed to control the proceedings. Suspects are often allowed to choose their initial position in a lineup and to change that position after each and every viewing by separate witnesses. A suspect can be required to shave, trim, or grow a beard before participating in a lineup. If any speech or body movement is required, all persons in the lineup have to do it. If two-way mirrors or darkened witness areas are used, there must be compelling reasons for it, such as witnesses who fear retaliation and have reason to fear retaliation.

    Fairness is not the only consideration. Impartiality is equally important. The Stovall test (from Stoval v. Denno 1967) inquires as to whether the police followed recommended procedures and guaranteed impartiality. This is more than good record-keeping and keeping notes on everything that transpired.  It refers to all sorts of circumstances in the sequence of steps taken before the lineup, during the lineup, and after the lineup. For this reason and because freshness is important at all stages in preventing eyewitness error, the Stoval test is especially relevant to show-ups, prompt on-scene confrontations between victim/witness and offender. Show-ups don't violate due process because they are treated in evidence law as res gestae, or spontaneous utterances. The Stovall test looks at whether police made any preliminary statements to witnesses, if the witness statements were spontaneous and positive, and if a critically injured victim (thought to be providing a dying declaration) only has one chance to ID the suspect. Stovall also covers exigent circumstances where the police rushed to judgment in their quest for evidence.

    Although the standard of "impermissibly suggestive" has been mentioned previously, the case of Neil v. Biggers (1972) also produced the Five Factors of Eyewitness Reliability test, which is especially relevant to delayed identification situations. Those five factors are:

    Another test, called the Biggers-Brathwaite factors (from Manson v. Brathwaite 1977), uses a balancing approach which weighs the five factors of Biggers with the "corrupting" effect of any suggestive procedures. This means that even if police accidentally do something to jeopardize fairness or impartiality, the fact that eyewitness reliability is still strong would salvage the identification's suggestiveness.  Psychologists are frequent critics of this part of criminal justice because they strongly believe eyewitness confidence is not correlated with eyewitness reliability.  The law sees things just the opposite. 

    Because we've talked about the importance of regular procedures, implying they are tied into the concepts of fairness, impartiality, reliability, and suggestiveness, it might be helpful to list those STANDARD PROCEDURES:

SOME SPECIAL TYPES OF IDENTIFICATION PROCEDURES

    DNA PROFILING -- Depending upon the standard used in each state for scientific evidence, this type of identification procedure is easily accepted or scrutinized rigorously. States with the stricter Daubert standard tend to focus on validity and reliability, with the latter (reproduction of the same results) being the key factor. Contamination, tampering, and substitution are also considered, with some of these implying scientific fraud. Generally, the reported match (crime scene match) must be converted to a true match (using population statistics) and expressed as an odds ratio like there's a one in 7 million chance of error; i.e., that it could be anyone other than the suspect. If defense attorneys cannot attack the reliability, the best defense is to say the trace evidence was left accidentally and innocently before or after the crime. DNA tests can also clear someone suspected of being a suspect, but they have more important implications for exoneration of those falsely convicted.

    HYPNOSIS -- Under hypnosis, a witness may relax enough to give a better description, but most states do not allow the practice because of its unreliability. There are questions about due process (if the defense can use hypnosis too), and the rules are more lenient for defense use of hypnosis than prosecution use.  Police use of hypnosis is generally limited to recalling a license plate, description of a fleeing offender, or persons seen in the vicinity of a crime.  Suggestibility is a concern that is relevant whenever hypnosis is combined with psychotherapy of some sort.  This happens more often than not when a defendant claims their right to hypnosis, and multiple personalities or repressed memories are discovered, most of which are attempts at insanity, excuse, or leniency.  A distinction is usually made between hypnotically induced recollection (which is largely inadmissible and involves someone changing their pre-hypnosis testimony), and hypnotically-refreshed testimony (which is admissible in some states such as New Jersey and New Mexico on grounds it does not significantly alter prior testimony).

    PSYCHICS -- Police departments rarely employ the services of psychic detectives, but are often inundated with reports from them in any well-publicized case.  When they are used, psychics are either registered as a confidential informant or their role is kept secret.  The NYPD, for example, kept psychic Dorothy Allison's involvement in the Son of Sam case out of all reports in order not to complicate the legal process.  Most psychics prefer secrecy out of fear of retaliation or ridicule.  Courts take a dim view on allowing psychics to testify as any kind of witness.      

    PHOTOGRAPHIC -- Besides lineups and showups, this is the third most common way police identify someone. Witnesses are shown mug shots or photographs to identify or eliminate suspects. Witnesses who delay in coming forward are also allowed to view videotapes of any previous lineups held for other witnesses.  If a witness randomly looks through mug shots, it's called a photographic display. If the police select certain pictures for them to look at, it's called a photographic array.  With arrays, the Supreme Court has held to a minimum standard of at least six photographs, with only frontal views to be used, and ideally without any signs in the photo that someone has been booked as a criminal.

    POLYGRAPH -- Most states refuse to admit lie detector tests unless admissibility is agreed upon by both parties.  Operator competence and peer recognition are major issues.  From a due process standpoint, the concern is possible violation of the right against self-incrimination. If polygraphs were used for identification purposes only, that would be a less serious problem than their more typical use in finding out if the offender did it (is lying about it).  The use of polygraphy to clear someone as a suspect is a well established pretrial defense strategy.

    When MUG BOOKS are presented, they should always be referred to in front of the witness as a "collection of photographs", never implying any specific grouping by type of crime. One should also make sure that the photos are in pretty much the same format so that no one photo unduly stands out, all are reasonably contemporary and alike. Specific mug book procedures also include: telling the witness that the person who committed the crime may or may not be in the book; suggesting the witness think back to the event and his/her frame of mind at the time; and assuring the witness that the case will still be investigated even no one can be identified from the mug book. Most importantly, the procedure requires that the witness state, in his/her own words, how certain they are of any identification. The whole procedure should be documented or video recorded. If an identification is made, a written statement should be recorded and then reviewed by the witness for an opportunity to change, add, emphasize, or de-emphasize anything.  When COMPOSITES, artist renderings, or computer sketches are used, it should be remembered that, by law, they may not rise to the level of probable cause. Think of composites as a way to develop leads. The first consideration is how well the witness has the ability to describe the perpetrator. It's very important that the witness not be shown any photographs before helping develop the composite. Composites should be done in a more distraction-free environment than mug books.

    When circumstances require the prompt display of a single suspect to a witness, this is called a showup, or field identification. The procedure requires an investigator to have a good description of the perpetrator beforehand. Then, witnesses one at a time are taken to where a held suspect is located (not in detention, just being held, as in a show of authority stop).  Each witness is cautioned that the person they are looking at may or may not be the perpetrator. There should be documentation of the outcome, in the witness's own words, as to how certain he/she is.  Lineups must include only one suspect and a minimum of 4-5 fillers (non-suspects), and photographic arrays require 5 or more fillers. Complete uniformity of features is not required, and the investigator should avoid using fillers who so closely match the suspect to make it difficult. A consistent appearance should exist, however, between all persons in the lineup with respect to unusual features; e.g. scars, tattoos. The suspect should be positioned randomly. Use different fillers with new suspects shown to the same witness. Make sure the suspect does not unduly stand out.   Lineups require the witness be told that it is just as important to clear innocent persons as to identify guilty parties. They should also be told that the perpetrator may or may not be in the lineup; that police will continue to investigate even if no identification is made; and that procedure requires the witness, in their own words, to state how certain they are. If time has passed between the event and the lineup, police may inform the witness that the suspect may not appear exactly as they did on the date of the incident because head and facial hair are subject to change. Documentation of lineups should be done by photo or video. Afterwards, the witness should be discouraged from talking to the media. 

BAIL PROCEDURES

    The traditional purpose of bail is to ensure the accused's presence at trial. The amount of bail is statistically the best predictor of sentence length. Bail set at a figure higher than the amount calculated to ensure the accused's return to court can be construed as "excessive".  Detectives are sometimes consulted on bail recommendations.  There are five (5) circumstances the court can consider in setting bail:

    Bail has been the subject of a reform movement throughout much of the 20th Century. In 1954, Caleb Foote did a study and found that 75% of people couldn't afford bail. In 1966, the Vera Institute conducted the Manhattan Bail Project which resulted in widespread adoption of ROR (Release on Recognizance), a promise to appear. In 1984, Congress authorized the practice of preventive detention (denial of bail upon fear of reoffending). The practice of only putting up 10% of the bail amount (and receiving only 90% of this back if appear in court on time) is called the Illinois Plan, and I'm not sure when in the twentieth century this practice started. Reformers regard the bail system as the last remnant of "checkbook justice."  Most of the time, a judge releases someone as part of judicial discretion (pretrial release) and then they attach conditions, such as promises to remain in the community, refrain from using drugs and alcohol, or attend a rehabilitation program. Such persons are called supervised releases or deferred prosecutions. Third parties, such as relatives, are expected to supervise them, although pretrial releases are also usually kept watch on by detectives.

ASSET FORFEITURE PROCEDURES

    The process by which the government takes property away from a criminally accused individual is called a forfeiture proceeding, and it's a civil, not criminal, action. Double jeopardy protections do not apply to civil proceedings after criminal proceedings. With asset forfeiture, the process is accelerated, under the premise that some criminals regard detention as a regular part of doing business so there should be some stronger tools for law enforcement in getting at the instrumentalities and proceeds of their crime. "Guilt by association" also takes on new meaning, as jointly owned property (like the family vehicle) can be confiscated and auctioned off. This procedure is generally reserved for crimes falling under RICO statutes (Racketeer Influenced Corrupt Organizations), but drug cases qualify, however. There have been reports of police abuse, and it's estimated that $3 billion a year is reaped, a percentage of it going back to local law enforcement, the rest into federal contingency funds or to pay off the public debt.

DISCOVERY PROCEDURES

    Discovery is a pretrial procedure originating from civil law whereby opposing parties share information with one another which is necessary to their respective positions at trial.  When done voluntarily, the process is called disclosure, and works most of the time informally.  Police generally turn over to defense attorneys all copies of lab reports and transcripts of video- or tape-recorded interrogations, and are under a professional obligation to turn over any evidence that might be favorable (exculpatory) to the accused.  When done formally, discovery takes one of three forms:  (1) deposition, which occurs when a material witness is called into an attorney's office or some neutral place to record a verbatim statement under oath before a stenographer; (2) interrogatory, which is a means of obtaining answers to a series of possible cross-examination questions likely to be asked at trial; and (3) subpoena duces tecum, which consists of a series of hypothetical questions to be asked, and in the case of expert witnesses, what books or resources they have based their expertise on.  

    If certain facts can be agreed upon by both parties prior to trial, these are called stipulations, and those facts will be readily admissible without the need for establishing them at trial.  Other facts, such as matters of common knowledge, may become the basis of judicial notice, also not required to be brought up at trial.  At the discovery stage, some agreement may be reached on presumptions and rebuttable presumptions.  Example of presumption: If the defense plans to mount an insanity defense, this plan must be shared with the prosecution because the prosecution enjoys a presumption of sanity.  The prosecution then carries a burden of proving that the defendant is not insane.  Example of rebuttable presumption: If the defendant resisted arrest or attempted to flee from police, the prosecution normally enjoys the right to bring this up as a presumption of guilt.  However, if both parties agree to an alternative explanation in the pretrial stage, the issue of evading or eluding police will never be brought up.  Other vital and important matters that will be discussed in discovery include interpretation of what constitutes dying declarations and spontaneous utterances (res gestae).  Any plans to use opinion and hearsay evidence may be discussed to avoid the element of surprise.                            

A LIST OF PRETRIAL MOTIONS AND RULES

Motion for Change of Judge -- A request for a different judge.

Motion for Change of Venue -- A request for an out-of-town trial.

Motion for Continuance --This is to delay the trial for a number of reasons.

Motion for Discovery -- This claims the right of the adversary to inspect, review, and copy certain materials held by the opposing party, basically a list of all witnesses and the lineup of evidence.

Motion to Dismiss Charges -- Often the defense will make this motion on grounds of no prima facie evidence (eyewitnesses), lack of speedy trial, or double jeopardy.
 

Motion for Double Jeopardy Protection -- While most often seen in the form of a motion to dismiss charges or for a mistrial, double jeopardy really gets at the possible punishments involved. The theory is that the prosecution should get "one fair shot", and "double" is construed as: (1) a second prosecution for the same crime after conviction; (2) a second prosecution for the same crime after acquittal (collateral estoppel doctrine provides that any issue determined in the defendant's favor at trial cannot be relitigated in a later criminal proceeding); and (3) multiple punishments for the same crime (multiple counts in one state or redundant counts in separate states -- dual sovereignty doctrine allows multistate prosecution, but the doctrine of jurisdiction applies in most cases). A retrial is also sometimes allowed if the mistrial is due to "manifest necessity" (e.g., hung jury, paperwork defect). A prosecutor is never allowed to appeal an acquittal, but they may appeal other decisions such as a judge's setting aside a jury's guilty verdict or a ruling on a motion to suppress evidence. The right to be free from a second trial only applies if the second trial is for the "same offense" (the Blockburger rule).
 

Motion for Habeas Corpus -- This contests the legality of detention. Some states allow a prosecutor to charge an information via a grand jury, all without a preliminary hearing or court approval. In such cases, the motion is a request for a Gerstein-type hearing (from Gerstein v. Pugh 1975) to force a determination of probable cause. In many cases, the habeas corpus motion originates with a well-represented prisoner complaining about conditions of confinement, such as being double bunked in a cell, forced to eat bologna every day, or not being able to smoke (frivolous motions).
 

Motion to Impanel a Jury -- This is a request for a jury trial once the person has requested a bench trial.  Defendants are usually given some leeway to change their minds.  It's also used to request a 12-person jury instead of what a particular state uses (a 6 or 8-person jury).

Motion for Protective Order -- This is used when a person denies having committed an offense, most likely having declared an alibi, reverses themself, and then wants to come clean or mount some other kind of defense.  It's not the same as how the term is used in domestic violence cases.

Motion to Reduce Bail -- This asks to lower the bail amount, for financial hardship reasons or as a symbolic gesture.
 

Motion for Severance of Offenses -- This applies when the accused is charged with more than one offense and wants to be tried on each offense separately. It's generally up to the discretion of the judge.  It also applies to when there are multiple co-defendants, and one of them wants a separate trial. 

Motion for Speedy Trial -- This is sometimes used to force the prosecution's hand, to get a better plea bargain, or for other symbolic reasons.

Motion to Suppress Evidence -- This forces a suppression hearing in which the preponderance of evidence standard is used to decide if certain evidence and supporting affidavits should be excluded at trial because of improper procedures or irregularities. The burden of proof is on the defense except in a consent search situation. Frequently, the outcome of a suppression hearing results in much evidence being considered under the Orthodox rule, which allows the jury to decide admissibility in terms of materiality.

POLICE TESTIMONY AT TRIAL

    Police officers and detectives themselves are usually the first and last (recalled) witnesses at trial.  For this reason, they usually get to stay in the courtroom, and sit up front behind the prosecutor's table, while other witnesses wait outside until they're called.  Prosecutors need police witnesses to do two things: prove that all the legal elements of a crime are present; and provide proof beyond a reasonable doubt.  In some cases, prosecutors like to present a string of police witnesses, from first responder to final investigator, but this strategy often backfires, and good prosecutors call about an equal number of police and civilian witnesses.  In rare cases, on account of education, training, or experience, a police witness may be treated as an expert witness.  Criminalists and forensic scientists are almost always treated as expert witnesses.  Regular police witnesses only get to testify about the facts.  Expert witnesses get to give their opinion about the facts.

    It is important for the police witness to be well dressed and well groomed.  No matter what, they should avoid any signs of prejudice or animosity.  One of the first questions asked of them during cross examination is if they refreshed their memory about the case in any way.  They should be truthful, and reply yes, since it is common practice to refer to one's notes (even bring them to court), and look over other documents or records before going to court.  Police witnesses will be grilled on the stand, in attempts to impeach them (attack their credibility) or make something sound like perjury.  Any inconsistency from prior statements, any sign of bias or prejudice, any poor employee performance evaluations, and any signs of unfitness (such as an alcohol problem) will result in impeachment.   Common perjury traps include trying to get the officer to talk about inadmissible matters like hearsay, privileged communications, and character or reputation.  They will be forced to answer yes or no to complex questions.  A "yes" means they accept the idea expressed in the question, and a "no" means they reject the idea (Weston & Lushbaugh 2003).

    Detectives and/or criminalists will be called to testify about the significance of any physical evidence collected and analyzed from the crime scene.  This type of testimony generally goes the distance in terms of direct, cross, redirect, and recross examination while on the stand.  The attorneys will zero in on any area the witness appears to be sensitive about.  This will most likely include areas where the witness seems to think they could have done their job better, or areas where the witness seems to think they did an excellent job.  It's important for such witnesses to not represent themselves as experts in fields where their expertise can be challenged.  It's equally important to avoid any scientific jargon.

INTERNET RESOURCES
DNA Exonerations
Eyewitness Identification Recommended Procedures
How The System Works
Police Officers and Their Memory

Pretrial Release FAQ

Vera Institute

PRINTED RESOURCES
Burke, J. (1975). Testifying in Court. FBI Law Enforcement Bulletin (September): 8-13.
Cutler, B. & S. Penrod. (1995). Mistaken Identification. NY: Cambridge.
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Klotter, J. (2000). Criminal Evidence. Cincinnati: Anderson.
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Technical Working Group for Eyewitness Testimony. (1999). Eyewitness Testimony: A Guide for Law Enforcement. Washington D.C.: DOJ/OJP.
Vukelic, J. (2002). A Law Enforcement Officer's Guide to Testifying in Court. Durham: Carolina Academic Press.
Wells, G., M. Leippe, & T. Ostrom. (1979). Guidelines for Empirically Assessing the Fairness of a Lineup. Law and Human Behavior 3:285-93.
Wells, G., M. Small, S. Penrod, R. Malpass, S. Fulero & C. Brimacombe. (1998). Eyewitness Identification Procedure Recommendations. Law and Human Behavior 22: 603-24.
Weston, P. & C. Lushbaugh. (2003). Criminal Investigation. Upper Saddle River: Prentice Hall.
Whitaker, M. (1985). The Police Witness. Springfield: Charles Thomas. 

Last updated: Aug 15, 2010
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T.  (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/rest of URL accessed on today's date.