Chapter 9
Identification Procedures
and the Role of Witnesses
Copyright © Allyn & Bacon 2007
Introduction: Dealing with Witnesses
to Crimes
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Identification procedures are concerned with
having witnesses identify suspected criminals
Three types of identification procedures are
relevant:
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Lineup
Showup
Photographic array
Further, identification procedures can be:
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Out of court (most common)
In court
Copyright © Allyn & Bacon 2007
I. CONSTITUTIONAL RESTRICTIONS
ON IDENTIFICATION PROCEDURES
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Identification procedures have been
challenged based on:
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Fourteenth Amendment due process
Fifth Amendment self-incrimination
Sixth Amendment right to counsel
Fourth Amendment unlawful seizure
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A. Right to Counsel
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In United States v. Wade (1967), the Supreme
Court held that the accused must be provided
with counsel during post-indictment lineups
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B. Due Process
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In Stovall v. Denno (1967), the Supreme
Court held that the accused is entitled to
protection against procedures “so
unnecessarily suggestive and conducive to
irreparable mistaken identification” as to
amount to a due process violation
To avoid violating due process, the
identification procedure must be:
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Reliable
Minimally suggestive
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(continued)
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Factors used to determine whether an
identification procedure is reliable include:
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Opportunity to view
Witness’s degree of attention
Accuracy of witness’s description
Level of certainty
Time between crime and identification
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C. The Fifth Amendment
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In United States v. Wade (1967), the Supreme
Court held that the Fifth Amendment privilege
against self-incrimination does not limit the
use of identification procedures
In other words, the Fifth Amendment doesn’t
matter in the identification context
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D. The Fourth Amendment
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According to the Supreme Court, no one
enjoys a “reasonable expectation of privacy” in
characteristics that are exposed to the public
Appropriate justification is necessary in order
to apprehend someone for identification
purposes
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E. Summary
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Only two constitutional provisions actually
place restrictions on identification procedures.
These two are the Fourteenth Amendment’s
Due Process Clause and the Sixth
Amendment’s right to counsel clause
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II. PRETRIAL IDENTIFICATION
TECHNIQUES
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Now we turn attention to:
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Lineups
Showups
Photographic arrays
Copyright © Allyn & Bacon 2007
A. Lineups
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Suspects can be forced to participate in
lineups because lineups present physical
characteristics, not testimonial evidence
Suspects placed in lineups can also be
required to supply voice exemplars, but the
suspect’s use of his or her voice in this context
is solely for identification purposes, not as a
confession
Suspects cannot refuse to participate in a
lineup
Consequences of refusal:
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Contempt
Prosecutor can comment at trial on refusal
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1. Steps to Minimize Suggestiveness
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An overly suggestive lineup violates due
process
Several steps for minimizing suggestiveness
have been identified in the following sources:
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Model Rules for Law Enforcement
International Association of Chiefs of Police
Examples of steps include:
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Lineups consisting of 5-6 people
People of similar builds
Suspects should choose place in line
Persons known to the witness not allowed in the
lineup
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B. Showups
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Showups are defined as one-on-one victimoffender confrontations, usually conducted
outside the courtroom setting
Lineups are always preferable to showups
Showups are necessary sometimes
Showups should not be conducted more than
60 minutes after the crime
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There are exceptions
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1. In-Court Showups
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In-court showups sometimes occur
Moore v. Illinois (1977) is the leading case in
this area
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C. Photographic Identification
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Photographic identifications involve displaying
a picture of the suspect along with several
other people to a victim or witness for the
purpose of identification
There is no Sixth Amendment right to counsel
during photographic identifications
Due process protections still apply
Several photographs of like individuals should
be shown to the witness
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III.
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IDENTIFICATION DURING TRIAL
Oftentimes a witness will be called upon to
identify the perpetrator of a crime (usually the
defendant) during the trial
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A. Forms of Questions
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Witness questioning in a criminal trial
proceeds through four stages
The first is direct examination, where the
witness is questioned by one party
Next, cross-examination takes place. This is
where the other party to the case has an
opportunity to question the witness
The third and fourth stages are re-direct and
re-cross examination
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(continued)
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As a general rule, on direct examination, the
questions must be “specific” but not “leading”
A specific question is one that does not call for
a narrative
A leading question is, according to the
California Evidence Code (Section 764), one
“that suggests to the witness the answer that
the examining party desires”
Leading questions are generally impermissible
on direct examination, but permissible on
cross-examination
Copyright © Allyn & Bacon 2007
1. Identifying a Leading Question
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A safe rule is that a question is leading when
the question suggests an answer
A question such as “You drank one beer per
hole when you were golfing, didn’t you?”, is
clearly leading
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2. Leading Questions during Direct
Examination
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Leading questions are generally impermissible
on direct examination
Exceptions
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In questioning on preliminary or undisputed matters
where accuracy of the witness’s response is more
important than efficiency
Where the witness is difficult to control without the
use of leading questions (e.g., children, people with
mental problems, experts, and others);
For the purpose of refreshing the recollection of a
forgetful witness; and
Eliciting testimony from hostile witnesses
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(continued)
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There are two types of witness hostility:
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Hostility in fact and
Hostility in law
A witness is hostile in fact when he or she
exhibits hostility toward the examiner
A witness who is hostile in law is one who
identifies with an adverse party
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3. Leading Questions during CrossExamination
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Cross-examination is commonly characterized
by leading questions
Leading questions on cross-examination serve
the following purposes:
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Appeal to the conscience
Awaken memories
Expose inaccuracies and falsehoods
Help witness focus on what is important
Certain types of leading questions are
impermissible on cross-examination
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4. Refreshing a Witness’s Memory
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Witnesses forget things
To remedy this problem the Federal Rules of
Evidence provide that a witness’s prior
experience may be “revived” by referral to the
witness’s prior statements
Specific methods exists and certain steps need
to be followed
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B. Witness Credibility, Impeachment,
and Rehabilitation
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Competency pertains to a witness’s ability to remember
events, communicate effectively, and understand the
importance of (1) telling the truth and (b) the
consequences for not doing so
Credibility asks, Should the witness’s testimony be
believed?
When discussing competency, courts often refer to the
processes or accrediting and discrediting
Discrediting attacks credibility
Accrediting bolsters credibility
Accreditation must be preceded be efforts to discredit
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1. Impeachment
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Impeachment is the formal term for attacking
a witness’s credibility
Impeachment generally begins on crossexamination
Impeachment is most often used by one party
to a case against another
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2. Rehabilitation
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When the credibility of a witness is attacked,
the side that produced the witness can take
steps to bolster the witness’s credibility, either
by calling other witnesses or introducing other
evidence
This process is known as rehabilitation
Rehabilitation occurs during redirect
examination
Methods of rehabilitation include:
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Witness is telling truth now
Previous statement taken out of context
Other evidence to bolster credibility
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IV. THE EXCLUSIONARY RULE AND
IDENTIFICATIONS
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When identification procedures violate
constitutional protections, the results from
such procedures cannot be considered
admissible in a criminal trial
First, if an in-court identification is tainted by
an out-of-court identification, then it will be
excluded
Second, if a suspect is searched and/or seized
improperly, then identified by a witness, the
results of the identification may be excluded
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A. Tainted Identifications
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If the in-court identification is tainted by an
out-of-court identification, it may be excluded
This is known as a tainted identification
In United States v. Wade (1967), the Supreme
Court held that an illegally-conducted lineup
does not invalidate later identifications
resulting from an “independent source”
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B. Identifications Resulting from
Illegal Searches and Seizures
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Looking at Supreme Court precedent, it would
seem that identifications resulting from illegal
searches and/or seizures are admissible
(United States v. Crews, 1980)
Further, it appears that the exclusionary rule
has little “teeth” outside the Fourth
Amendment context
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