THE LAW OF IDENTIFICATIONS IN CRIMINAL CASES
June 15, 2012
Maryland State Bar Association
Criminal Law & Practice Section
Byron L. Warnken
Law Professor, University of Baltimore School of Law
Copyright © 2012. All rights reserved.
Table of Contents
History & evolution of constitutional challenges to identifications ..........................................1
Motions to suppress out-of-court identifications ........................................................................3
Identifications controlled by the Sixth Amendment right to counsel........................................3
Identifications controlled by the Due Process Clause.................................................................4
Identifications as “fruit of the poisonous tree” documents........................................................7
Other constitutional issues related to identifications..................................................................7
New Jersey v. Henderson, 208 N.J. 208 (2011)............................................................................8
Eyewitness identification jury instructions ...............................................................................13
I.
History & evolution of constitutional challenges to identifications
In Woods v. State, 196 Md. App. 146, 157-60 (2010), the Honorable Charles E. Moylan,
Jr., speaking for the Court of Special Appeals, provided a concise, but comprehensive overview
of the constitutional analysis of challenges to the admissibility of identifications. Judge Moylan
stated:
Constitutional identification law, which the [Defendant] is invoking,
enjoyed a precise decade (plus four days) of high-profile celebrity between 1967
and 1977. During that decade, it rivaled confession law and search and seizure
law in the national spotlight. . . . It began with a sunburst on June 12, 1967, as the
Wade-Gilbert-Stovall trilogy rocketed onto the national stage. . . .
The constitutional principle which they championed was the Sixth Amendment’s
guarantee to the assistance of counsel to a Defendant. For the first time in
constitutional history, the placing of a suspect in a police line-up for identification
purposes was deemed to be a “critical stage.” These are classic Sixth Amendment
code words. If a Defendant was placed in such a line-up without a lawyer having
been provided and present, exclusion of the identification was automatically
called for. . . .
Within five years, however, a Thermidorean Reaction set in. Kirby v. Illinois,
406 U.S. 682 (1972), first held that a suspect placed in a pre-indictment, as
opposed to a post-indictment, line-up did not yet enjoy the protection of the Sixth
Amendment because such a suspect was not yet an “accused.” Being at a critical
stage would qualify an “accused” for Sixth Amendment assistance, but if you are
not yet accused, even a critical stage would not help.
Whatever little wind still propelled the exclusionary sails after Kirby, it was
largely wafted away by the subsequent holding in United States v. Ash, 413 U.S.
300 (1973), that even a post-indictment exhibition of a photograph of a subject,
either in a group picture or as part of an array of an individual photographs, was,
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unlike standing the suspect in a live line-up, not a critical stage. Whereas Kirby
had diminished the ranks of the “accused,” Ash diminished the incidence of a
“critical stage.” As for the basis for challenging extrajudicial identification, the
Sixth Amendment essentially disappeared from the scene within five years of its
initial appearance.
As this Court noted in Turner v. State, 184 Md. App. 175, 179 (2009): “Under
the combined impact of Kirby and Ash, the post-indictment line-up essentially
disappeared from the world of criminal investigation, and with it any significant
exclusion of identification evidence based on the Sixth Amendment’s right to
counsel. The once familiar line-up parade of stage and screen has been retired to
the Smithsonian. Creative law enforcement procedures effectively finessed the
Sixth Amendment. Wade and Gilbert are has-beens; they are yesterday’s stars.
With Wade and Gilbert largely relegated to the sidelines, attention shifted to the
third case in the 1967 trilogy, Stovall v. Denno, 388 U.S. 293 (1967). Stovall,
unlike Wade and Gilbert, was grounded in the Due Process Clause. It was
initially thought to be available in cases where governmental agents had subjected
a suspect to impermissibly suggestive identification procedures. Even then,
however, there were at least two requirements for exclusion. The suppression of
an extrajudicial identification, as a matter of law, pursuant to the Due Process
Clause, depended not only on suggestive procedures having been employed by the
police, but also on further misfeasance that those suggestive procedures were
impermissible rather than being born of the exigency then facing the police. . . .
In 1968, Simmons v. United States, 390 U.S. 377 (1968), came riding, like the
cavalry of old, to the rescue of beleaguered police identification procedures.
Simmons fine-tuned the due process test of Stovall v. Denno. Even impermissible
suggestiveness on the part of the police would not, ipso facto, call for suppression
as a matter of law. Simmons made it clear that evidence of an identification will
not be excluded unless the identification procedure was “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” 390 U.S. at 384. With Simmons, the focus turned to the
ultimate reliability of the identification in question.
If the identification is reliable, it is by definition not a “misidentification,” and is
not, therefore, subject to the exclusionary sanction. The focus, moreover, is on
the trustworthiness of the evidence itself and not on the behavior of the police.
The Due Process Clause does not use the exclusionary sanction to regulate police
procedures per se, unless those procedures produce unreliable evidence.
The tilt, moreover, favors reliability, because the evidence will not be excluded
unless there is a very substantial likelihood of misidentification. “[I]njection of
reliability into the constitutional equation . . . was not a basis for exclusion but
was quite the opposite. It was a limitation on exclusion. . . . Presumptive
exclusion is based solely on impermissibly suggestive procedures having been
used by the police. Reliability is then the exception to exclusion that can “trump”
even impermissible suggestiveness.
II.
Motions to suppress out-of-court identifications
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Md. Rule 4-252 requires certain mandatory motions in Circuit Court. One such motion is
a motion to suppress an “unlawfully obtained . . . pretrial identification.” Id. 4-252(a)(3). This
motion must be “filed within 30 days after the earlier of the appearance of counsel of the first
appearance of the defendant before the [Circuit} court . . .” Id. 4-252(b). If the basis of the
motion is not learned until the State provides discovery, the motion must be field within five
days after discovery is furnished. Id. If not filed timely, the issue is “waived, unless the court,
for good cause shown, orders otherwise.” Id. 4-252(a). The motion must be in writing, unless
the court otherwise directs, must state the grounds and relief sought, and must contain points and
authorities. Id. 4-252(e). The State has 15 days after service of the motion to file a response,
with points and authorities. Id. 4-252(f).
A motion to suppress an identifications need not be specific. In Jones v. State, 395 Md.
97 (2006), the Defendant filed a motion to suppress a photo array shown to a witness. At the
suppression hearing, the trial court precluded the Defendant from calling, as a witness, the
detective who presented the photo array. On appeal the Defendant argued that he should have
been allowed to call the officer to show that the display was unduly suggestive. The State argued
that, under Md. Rule 4-252(e), the Defendant must provide “precise and specific factual
averments.”
The Court stated that, “[a]lthough the Rule is clear that a motion alleging an illegal
source of information as the basis for probable cause must be supported by precise and specific
factual averments, it is silent as to the issue of identification and more specifically, it does not
address whether a Defendant has an obligation to satisfy some threshold burden to present
definite, specific or detailed allegations of suggestivity.” Id. at ___. Noting that the Defendant
may not have the necessary information at the time of filing, particularly as to a photo array, the
Court held that the Defendant “must state sufficient information to put the court and the State on
notice of the evidence he or she wishes to suppress and the basis therefore.” Id. at ___.
III.
A.
Identifications controlled by the Sixth Amendment right to counsel
Attachment of the Sixth Amendment & the requisite critical stage
The Sixth Amendment right to counsel attaches at the initiation of judicial adversarial
proceedings, i.e., formal criminal charges (indictment or information), arraignment, adversarial
preliminary hearing. Kirby, 406 U.S. 682; Harris v. State, 303 Md. 685 (1985); Jackson v. State,
17 Md. App. 167 (1973). Even after the right to counsel attaches, it only applies to critical
stages, i.e., when failure to have counsel may denigrate trial rights. In United States v. Wade,
388 U.S. 218 (1967), the Supreme Court held that counsel’s presence at a pre-trial identification
protects the “right to meaningfully cross-examine witnesses against him and to have effective
assistance of counsel at the trial itself.” In Ash v. United States 413 U.S. 300 (1973), the
Supreme Court recognized that counsel’s presence protects against suggestive influences and
allows counsel to effectively reconstruct the identification at trial. The Defendant may waive the
right to counsel through a knowing and intelligent waiver. Wade, 388 U.S. 218.
B.
Applicability of the right to counsel for identifications
The right to counsel applies to some pre-trial identifications and not to others. In Wade,
388 U.S. 218, the Supreme Court held that the Defendant has a right to counsel when the
identification is made from a line-up. Because a line-up is difficult to re-create, unless counsel is
present at the line-up, it will be difficult to challenge the identification in a pre-trial suppression
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hearing or at trial. Thus, there is a right to counsel at a line-up after the Defendant is formally
charged.
In Moore v. Illinois, 434 U.S. 220 (1977), the Supreme Court held that the Defendant has
a right to counsel when the identification occurs during a “one-on-one” show-up. Because a
show-up is difficult to re-create, unless counsel is present at the show-up, it will be difficult to
challenge the identification in a pre-trial suppression hearing or at trial. Thus, there is a right to
counsel at a show-up after the Defendant is formally charged. However, even without counsel
present, a show-up may be admissible if not orchestrated by the police. Bartley v. State, 32 Md.
App. 283 (1976) (chance encounter in courtroom); Billinger v. State, 9 Md. App. 628 (1970)
(chance encounter in hospital).
Even though the Sixth Amendment right to counsel, does not require counsel for preindictment lineups, Maryland’s Public Defender statute provides for such a right. If the State
informs the Public Defender of a pre-indictment lineup and the Public Defender does not appear,
the identification is not excluded automatically. Rather, the admission of that evidence will be
governed by the test set forth in Neil v. Biggers, 409 U.S. 188 (1972). When law enforcement is
at fault for the absence of a public defender during an identification, regardless of reliability, the
identification will be inadmissible. Webster v. State, 299 Md. 581 (1984).
C.
No right to counsel
Sometimes, the right to counsel does not apply. The right does not attach to any
identification made prior to judicial adversarial proceedings or a trial-like confrontation, e.g.,
prior to formal charges or an adversarial preliminary hearing. Kirby, 406 U.S. 682. Sometimes,
the right to counsel has attached, but it is not a critical stage, and thus the right to counsel does
not apply, e.g., fingerprints, Wade, 388 U.S. 218; blood sample, Wade, 388 U.S. 218, clothing
sample, Wade, 388 U.S. 218; hair sample, Wade, 388 U.S. 218; handwriting sample, Gilbert v.
California, 377 U.S. 201 (1967), photo arrays (Ash, 413 U.S. 300). The Defendant may
knowingly and intelligently waive the right to counsel. Wade, 388 U.S. 218.
IV.
Identifications controlled by the Due Process Clause
“The right to due process of law protects the accused from the introduction of evidence
tainted by ‘unreliable pre-trial identifications obtained through unnecessarily suggestive
procedures.’” Alston v. State, 177 Md. App. 1 (2007) (quoting Moore, 434 U.S. 220). The due
process right is unrelated to whatever right the Defendant may have under the Sixth Amendment
right to counsel. See Smith v. State 6 Md. App. 59 (1969). In Barrow v. State, 59 Md. App. 169
(1984), the Court of Special Appeals stated: “[L]ine-ups, show-ups (or confrontations), and
photographic identifications . . . occur outside the courtroom in less controlled atmospheres [and]
must be especially scrutinized to protect the Defendant’s . . . due process safeguards.” Id. at ___.
A.
The Two-Step Inquiry of Suggestiveness & Reliability
In James v. State, 191 Md. App. 233 (2010), the Court of Special Appeals stated:
The procedure for evaluating whether identification evidence will be admitted is a
two-step inquiry: The Defendant has the burden of production to demonstrate an
unduly suggestive pre-trial identification procedure. If that showing is made, the
court must then determine whether, based on the totality of the circumstances, the
identification was reliable, despite the suggestiveness of the confrontation
procedure. Although the reliability of the identification is the “linchpin” question,
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if the identification procedure is not unduly suggestive, then our inquiry is at an
end.
Id. at ___.
In Gatewood v. State, 158 Md. App. 458 (2004), the Court of Special Appeals held that
the Defendant bears the initial burden of showing that the procedure employed to obtain the
identification was unduly suggestive. If that showing is made, the State must prove that the
independent reliability in the identification outweighs the corrupting effect of the suggestive
procedure.
In Neil v. Biggers, 409 U.S. 188 (1972), a rape victim identified the Defendant, based on
a voice identification and a show-up seven months after the rape, stating that she was in his
presence for a long time and was certain of her identification. The Supreme Court held that,
even if an identification procedure is unduly suggestive, if the identification is reliable, it is
admissible. “The central question [is] whether under the ‘totality of the circumstances’ the
identification was reliable even though the confrontation procedure was suggestive.” Id. at ___.
The Court held the identification was reliable, under a totality of the circumstances, listing
reliability factors.
In Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court held that an
identification that resulted from a suggestive procedure is not excluded unless there is a “very
substantial likelihood of irreparable misidentification.” Accord Wood, 196 Md. App. 146;
Brockington v. State, 85 Md. App. 165 (1990). In Biggers and Brathwaite, the Court listed
factors to be considered in determining the reliability of an identification, i.e., (1) the opportunity
of the witness to view the Defendant during the crime, (2) the degree of attention of the witness,
(3) the accuracy of any prior description given by the witness, (4) the level of certainty on the
part of the witness, and (5) the length of time between the crime and the identification.
B.
Examples of inadmissible identifications
In Moore, 434 U.S. 220, the Supreme Court held that the identification was unnecessarily
and impermissibly suggestive. At an adversarial preliminary hearing, a rape victim identified the
Defendant as her assailant. The victim was told that she was going to view the suspect, was told
the Defendant’s name, heard the Defendant’s name as he was led to the bench, and heard the
prosecutor recite the evidence implicating the Defendant. In Foster v. California, 394 U.S. 440
(1969), the Supreme Court held that the line-up was unnecessarily and impermissibly suggestive
when it consisted of only three people, and the Defendant was significantly taller than the other
two and was dressed like the assailant was dressed.
In Coleman v. State, 8 Md. App. 65 (1969), the Court of Special Appeals held that
identification by a witness at a preliminary hearing violated due process: “We cannot say, in the
unusual circumstances existent in this case, that the identification at the preliminary hearing was
not ‘prejudicially inspired.’ It is not contradicted that the appellant alone was brought to the
bench by police officers, that the judge indicated that the appellant was the accused by reading
the charge to him[,] that the police knew that the witness had been unable to identify the
appellant on previous occasions when given the opportunity to do so, and that it was thereafter at
the hearing that the witness for the first time positively identified the appellant as the man she
had seen committing the crimes.”
In Watson v. State, 7 Md. App. 225 (1969), the Court of Appeals stated: “[I]t is readily
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evident that where the police, by pre-design, arrange a one-to-one confrontation between the
victim (or eyewitness) and the accused in the police station, such a circumstance, of itself, would
necessarily have great bearing on the question of whether there has been a denial of the
accused’s Fourteenth Amendment right to due process of law.”
In Rustin v. State, 46 Md. App. 28 (1980), a police officer, after observing the robbers for
five to ten seconds at night under street lights, and being shown only one photograph, made an
identification, but was unsure of his description, and so testified at a pre-trial hearing and at trial.
In addition, the officer identified the Defendant’s brother as one of the robbers and testified, both
at a pre-trial hearing and at trial, that he was 80% certain that the Defendant’s brother was the
guilty party. The Court of Special Appeals held that identification was not sufficiently reliable to
overcome the presumption of an impermissibly suggestive identification.
C.
Typically an issue of weight & not admissibility
Notwithstanding these examples, the State usually prevails under the due process
analysis. Typically, either the identification is not unduly suggestive or, even if suggestive, is
reliable. Usually, the problems, if any, with the identification, go to its weight and not to its
admissibility. In Webster v. State, 299 Md. 581 (1984), the Court of Appeals stated that “[i]t is
only where there is a very substantial likelihood of irreparable misidentification [and] the
identification could not be found to be reliable, that exclusion would be warranted. Short of that
point, the evidence is for the jury to weigh.” See, e.g., Simmons, 390 U.S. 377 (permissible to
show victim six photographs shortly after robbery); Turner v. State, 184 Md. App. 175 (2009)
(impromptu one-on-one identification, while intoxicated, and after a fight, was suggestive, but
was reliable); Thompson v. State, 164 Md. App. 562 (2005) (photo array not impermissibly
suggestive even though Defendant was the only one wearing a white t-shirt and victim stated
assailant wore white t-shirt), rev’d on other grounds, 393 Md. 291 (2006); Gatewood v. State,
158 Md. App. 458 (2004), aff’d, 388 Md. 526 (2005) (photo identification not impermissibly
suggestive); Thomas v. State, 139 Md. App. 188 (2001) (police identification after learning the
name and looking at an MVA photo not impermissibly suggestive); Carter v. State, 80 Md. App.
686 (1989) (no prima facie case of impermissibly suggestive identification); Loud, 63 Md. App.
702 (photo identification preceding lineup not impermissibly suggestive); Barrow, 59 Md. App.
169 (identification by several witnesses not unnecessarily suggestive when shown Defendant’s
license immediately after robbery); Wallace v. State, 9 Md. App. 131 (1970) (identification
during a preliminary hearing not illegal when Defendant seated with several other similar
looking men).
In Jenkins v. State, 146 Md. App. 83 (2002), rev’d on other grounds, 375 Md. 284
(2003), the Court of Special Appeals held that the identification procedure was not
impermissibly suggestive, even though the Defendant was the only person to appear in both a
photo array and a lineup because, under a totality of the circumstances, noting a several month
gap between the photo array and the lineup, and the witness gave no indication that he knew who
the Defendant was.
In In re Matthew S., 199 Md. App. 436 (2011), a police officer investigated drug dealing.
He identified the Defendant from a high school year book, where the Defendant’s name appeared
beneath his picture. The Defendant argued that the identification was unduly suggestive because
the officer knew his name prior to making the identification. The Court of Special Appeals
disagreed because the identification was made by a trained police officer.
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V.
A.
Identifications as “fruit of the poisonous tree”
In-court identification following unconstitutional out-of-court identification
If an out-of-court identification is suppressed, an in-court identification will also be
suppressed, unless the trial court finds, by clear and convincing evidence, that the in-court
identification comes from a source independent of the unconstitutional out-of-court
identification. Gilbert v. California, 388 U.S. 263 (1967). In Wade, 388 U.S. 218, the Supreme
Court held that, to satisfy the “independent origins” test, the in-court identification must be
significantly purges of the taint of the unconstitutional out-of-court identification. In
determining whether an in-court identification has been purged of the taint stemming from an
out-of-court identification, courts look to the Manson and Biggers factors. An in-court
identification is much more likely to be admissible when the basis for suppression of the out-ofcourt identification is a violation of the Sixth Amendment right to counsel and not a violation of
the Due Process Clause. See Alston v. State, 177 Md. App. 1 (2007).
In Barrow v. State, 59 Md. App. 169 (1984), the Court of Special Appeals noted: “Even
if the State fails to satisfy the legality of a pre-trial confrontation, the State may still secure the
admissibility of a courtroom identification by the same identifying witness if it establishes by
clear and convincing evidence that a courtroom identification had a source independent of the
prior illegal confrontation or viewing.” Id. at ___ (emphasis in original). In Coleman v. State, 8
Md. App. 65 (1969), a pre-Biggers case, the Court of Special Appeals held that the State did not
meet its burden to purge the taint of a prior illegal lineup, using factors substantially similar to
Biggers, and adding (1) any identification of another person prior to the line-up, (2) any photo
identification of the Defendant prior to the line-up, and (3) any failure to identify the Defendant
on a prior occasion.
B.
Out-of-court identification resulting from an illegal arrest or detention
If, at the time of the identification, the Defendant is arrested or detained in violation of
the Fourth Amendment, the issue is whether the identification is suppressed, as fruit of poisonous
tree, or whether the identification is admissible based on an attenuation of the taint. In Davis v.
Mississippi, 394 U.S. 721 (1969), the Supreme Court suppressed, as a fruit of poisonous tree,
fingerprints obtained during an illegal arrest. In Modecki v. State, 138 Md. App. 372 (2001),
the Court of Special Appeals held that identification of the Defendant during a traffic stop was
not a “fruit” of that detention, even if the stop was unlawful. In United States v. Crews, 445
U.S. 463 (1980), the Supreme Court upheld admission of a photograph of the Defendant, taken
during an illegal arrest, and used by the victim to identify the Defendant in court, because there
was an attenuation of taint, i.e., the illegal arrest did not affect the victim’s ability to provide
accurate identification testimony because her testimony was based on her own observations. See
Johnson v. Louisiana, 406 U.S. 356 (1972).
VI.
Other constitutional issues related to identifications
The Fourth Amendment is usually not implicated in an identification itself because there
is no reasonable expectation or privacy in the sound of one’s voice, physical features, or
handwriting because they are visible to the public. The Fifth Amendment privilege against
compelled self-incrimination is usually not implicated in an identification privilege because the
evidence is physical and not testimonial. Webster, 299 Md. 581; Jackson v. State, 17 Md. App.
167, cert. denied, 268 Md. 749 (1973). Of course, the Defendant has a Fourth Amendment right
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not to be illegally seized and then subjected to an identification. Unless the Defendant
voluntarily participates in a line-up, a line-up would constitute an arrest, which requires probable
cause. Hayes v. Florida, 470 U.S. 811 (1985). Unless the Defendant voluntarily participates in a
show-up, a show-up would constitute a stop or detention, which requires reasonable suspicion.
VII.
New Jersey v. Henderson, 208 N.J. 208 (2011)
In New Jersey v. Henderson, 208 N.J. 208 (2011), the relevant facts are as follows: On
the night of the murder, the victim and two others were drinking wine and champagne and
smoking crack cocaine. Two men entered the apartment to collect money. One of the assailants
remained with one of the witnesses in a small, narrow, dark hallway, with a gun pointed at the
witness’ chest. The witness heard a gun shot and saw a Defendant holding a handgun and the
victim shot.
The witness did not speak to the police until ten days after the incident. After first lying
to the police, the witness later told all and identified the other assailant from a photo array. The
witness reviewed the photo array with a detective that was not a primary investigator in the case,
to be sure of no inadvertent verbal cues or body language. The witness was later shown photos
one at a time and he eliminated all but two. The detectives told the victim to calm down and
focus, and the police would handle any threats against him, and to do what he had to do. The
victim then identified the Defendant as the accomplice.
The witness testified at the suppression hearing that he was pressured to make a choice.
He also testified that he “got a good look,” but not “a real good look,” but that he was sure of his
identification. The trial court applied to Manson test to determine the admissibility of the
eyewitness identification. The test involves (1) determining if the police identification
procedures were impermissibly suggestive; and, (2) if so, weighing the five factors to decide if
the evidence is admissible. The court ruled that the evidence admissible.
The appellate court held that the identification procedure was impermissibly suggestive
under the first prong of the Manson test because the detectives intruded on the identification
process. A new suppression hearing was ordered. The state Supreme Court granted certiorari
and remanded to the trial court for a special master to consider whether the assumptions and
factors in the Manson test remain valid in light of recent scientific research. On remand, the
special master saw 360 exhibits including more than 200 published scientific studies and heard
from seven expert witnesses.
Eyewitness misidentification is widely recognized as the greatest cause of wrongful
convictions in the country, and it is the least reliable of all investigative procedures. In more
than 75% of the convictions overturned based on DNA evidence, the conviction had been based
on eyewitness misidentification. In one study, one-third of eyewitnesses identified the wrong
person. Another study showed that witnesses are more likely to choose the wrong person than to
make no identification at all. Eyewitnesses usually act honestly, and a jury will not suspect
dishonesty or bias.
The Manson test is used to determine admissibility of eyewitness identification. Under
this test, it must first be determined whether the identification procedure was impermissibly
suggestive. If so, it must be determined whether the objectionable procedure resulted in a very
substantial likelihood of misidentification, focusing on the reliability of the identification and
examining five factors, as follows: (1) the opportunity of the witness to view the assailant at the
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time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior
description of the assailant, (4) the level of certainty at the time of the confrontation, and (5) the
time between the crime and the conformation. If the identification is reliable, it is admitted.
This framework needs to be revised in light of new research. Of the many post-Manson studies,
the majority are controlled experiments and not real-world studies.
Memory does not work like a video recording to be replayed in order to remember what
happened. It is much more complex. Memory can be distorted and falsely remembered. The
witness only remembers the gist of things and memory rapidly decays or becomes distorted.
Memory is malleable.
An identification may be unreliable if the line-up is not administered in a blind or double
blind fashion. Double blind administrators do not know who the suspect is. Blind administrators
know who the suspect is, but do not know where the suspect is in the line-up. These methods
prevent administrators from unintentionally influencing a witness’s decision with words, cues, or
gestures. Pre-identification instructions should convey to the witness that (1) the suspect may or
may not be in the lineup or array, and (2) the witness should not feel compelled to make an
identification.
A properly constructed line-up test a witness’s memory and decreases the chance that a
witness is guessing. A mistake is likely to occur when the suspect stands out from the others.
Thus, a line-up should consist of look-alikes. A line-up should include a minimum number of
persons, which gives the witness a better chance to distinguish the assailant from others.
Generally, five is adequate. If there are multiple assailants, no line-up should include more than
one suspect because the possibility of a “lucky guess” increases.
Confirmatory post-identification feed-back gives witnesses a false sense of confidence
and falsely enhances recollection. Confidence must be recorded before feedback is given.
Viewing a suspect more than once can affect the reliability of a later identification.
Successive views of the same person makes it harder to distinguish whether the memory of them
comes from the original event or comes from an earlier identification procedure.
A show-up is a one-person line-up in which one person is presented to a witness to make
an identification. This is often performed at the scene of the crime. By their nature, show-ups
carry a greater risk of misidentification. If done immediately after the witnessed event, the
benefit of a fresh memory outweighs the risks.
Estimator variables are factors behind the control of the criminal justice system, as
follows. There is broad consensus among experts on the findings below.:
(1)
Stress: High levels of stress can diminish the ability of an eyewitness to recall
and make an accurate identification. Moderate levels of stress improve cognitive processing and
accuracy.
(2)
Weapon focus: When a visible weapon is used during a crime, it can distract a
witness and draw his attention away from the assailant. Weapon focus can impair a witness’
ability to make a reliable identification, particularly during a crime of short duration.
(3)
Duration: The amount of time that the witness had to observe the event may
affect the reliability of any identification. The less amount of time, the greater the risk of
misidentification.
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(4)
Distance & lighting: A person is easier to recognize when close and clarity
decreases with distance. Poor lighting makes it more difficult to see. Thus, greater distances and
poor lightening decrease the reliability of identification.
(5)
Witness characteristics: Age and intoxication can affect the reliability of an
identification. People who are highly intoxicated and children between age nine and age 13 are
more likely to misidentify. Witnesses are better at recognizing people of their own age.
(6)
Characteristics of the assailant: Disguises and changes in facial features can
affect the ability of a witness to remember an assailant.
(7)
Memory decay: Memories fade with time and do not improve with time. Delays
between the crime and the identification can affect the reliability of the identification.
(8)
Race bias: A cross-racial identification occurs when a person of one race
identifies a person of another race. Witnesses have more difficulty making cross-racial
identifications.
(9)
Private actors: Private individuals can affect the reliability of identifications just
like police officers can affect the reliability of identifications. Co-witnesses can also affect the
reliability of identifications. Co-witnesses can give feedback and suggest things about the
assailant that may cause false memories of things that the witness never even observed. Private
individuals can also affect a witness’ confidence.
(10) Speed of identification: The speed of an identification may be a reliability
indicator, but there is a split of opinion on this.
Law enforcement and reform agencies have taken notice of these findings. They have
started forming task forces and implementing new procedures to improve the reliability of
eyewitness identifications. The Attorney General Guidelines incorporate the research on
memory and interview techniques, e.g., someone other than the primary investigator should
conduct photographic or live lineups.
The Defendant and the amici endorse the Special Master’s findings from the remand
hearing. They argue that research shows that the Manson test needs revision. The test only
focuses on police misconduct rather than on the estimator variables and private individuals. That
test suppresses evidence in an all or nothing manner. It fails to provide jury guidance, and it
does not deter suggestive police practices.
The State argues that a breach of the Attorney General’s guidelines does not result in a
presumption of impermissible suggestiveness because it would penalize the Attorney General for
adopting the guidelines, and it would reward Defendants who intimidate witnesses. The State
argues that the detectives were just reassuring the victim and were not trying to influence him to
pick the Defendant.
The State also argues: (1) that the current Manson analysis should remain because there
is insufficient evidence to justify a change; (2) that the Manson test is broad enough to cover all
of the system and estimator variables, and it instructs trial courts to focus on confidence before
any confirmatory feedback; (3) that there are other safeguards to protect against wrongful
convictions; and (4) that the courts should rely on jurors for the credibility of witnesses.
In its legal conclusions, the Court found: (1) the scientific evidence is reliable and useful;
(2) the Manson test needs revision; (3) a revised framework should use all relevant system and
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estimator variables; (4) a pre-trial hearing, requiring some evidence of suggestiveness; (5)
enhanced jury instructions on the various reliability factors and at the end of the case; and (6)
application of factors in a given case.
The Manson test is supposed to ensure that the Defendant is not denied due process by
measuring reliability of eyewitness testimony, deterring improper police practices, and allowing
jurors to recognize untrustworthy eyewitnesses. This test does not meet these goals. The test
requires a finding that procedures were impermissibly suggestive before the courts can consider
estimator variables. Thus, if there is no finding of impermissibly suggestive procedures, there is
no consideration of estimator variables at all.
This is how, in this case, evidence that the witness was smoking crack cocaine and
drinking alcohol and standing in a dark hallway were not introduced until trial. In addition, three
of the factors to determine reliability – opportunity to view the crime, witness’ degree of
attention, and level of certainty – are all based on self-reporting by the witness, which can be
skewed by suggestive procedures. The test may reward suggestive police practices instead of
deterring them. There is only one option for questionable eyewitness testimony, which is
suppression and, although this is to be based on the totality of the circumstances, courts usually
only look to five factors.
A new framework needs to allow all relevant system and estimator variables to be
weighed at pre-trial hearings if there is evidence of suggestiveness. Courts should develop jury
instructions to help jurors evaluate eyewitness identification evidence. For a pre-trial hearing,
the Defendant has the burden of showing evidence of suggestiveness that could lead to mistaken
identification, and the state must then offer proof to show that the identification was reliable,
accounting for all system and estimator variables. The burden is on the Defendant to prove a
very substantial likelihood of irreparable misidentification by presenting and cross-examining
witnesses and presenting other evidence. If the trial court finds a very substantial likelihood of
irreparable misidentification, given the totality of the circumstances, the identification evidence
should be suppressed.
The Court concluded that a new test for the admission of identifications was necessary to
avoid inaccurate identifications and wrongful convictions. Under step one of the new test, the
Defendant must show some evidence of suggestiveness based on a system variable. Under step
two of the new test, the State must offer proof of reliability, accounting for system and estimator
variables. Weighing a totality of the circumstances, if the court finds there is a substantial
likelihood of misidentification, the court should suppress the statement. If the court does not so
find, the court instructs the jury regarding various relevant system and estimator variables. The
Court stated:
Two principal steps are needed to remedy [the Court’s concerns]. First, when
defendants can show some evidence of suggestiveness, all relevant system and
estimator variables should be explored at pre-trial hearings. A trial court can end
the hearing at any time, if the court concludes from the testimony that the
defendant’s threshold allegation of suggestiveness is groundless. Otherwise, the
trial judge should weigh both sets of variables to decide if the evidence is
admissible . . . Second, the court system should develop enhanced jury charges
on eyewitness identifications for trial judges to use. We anticipate that
identification evidence will continue to be admitted in a vast majority of cases.
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To help jurors weigh that evidence, they must be told about relevant factors and
their effect on reliability.
Id. at ___.
In evaluating whether there is evidence of suggestiveness, and whether a Wade hearing
should be conducted, the trial court should consider: (1) blind administration, (2) preidentification instructions, (3) line-up construction, (4) feedback, (5) recording confidence, (6)
multiple viewings, (7) show-ups, (8) private individuals, and (8) other identifications. In
evaluating evidence of suggestiveness and system variables, the trial court should consider: (1)
stress, (2) weapon focus, (3) duration, (4) distance and lighting, (5) witness characteristics, (6)
characteristics of perpetrator, (7) memory decay, (8) race bias, (9) opportunity to view the
assailant at the time of the crime, (10) the degree of attention, (11) the accuracy of prior
descriptions of the assailant, (12) the level of certainty demonstrated at the confrontation, and
(13) the time between the crime and the confrontation.
To obtain a pre-trial hearing, the Defendant must present some evidence of
suggestiveness using the system variables. The hearing would encompass system and estimator
variables based on some evidence of suggestiveness. Estimator variables are not considered
when making the decision to hold a pre-trial hearing because it is unlikely that a court would find
evidence inadmissible based on those variables alone. Courts cannot control those variables, and
suggestive behavior distorts various other factors that should be the main focus.
Enhanced instructions need to be given regarding the various factors that may affect
reliability of an identification in a particular case. It is the court’s obligation to help jurors
evaluate evidence critically and objectively to ensure a fair trial. Expert testimony can be
presented at trial. The court asks the Criminal Practice Committee and the Model Criminal Jury
Charges to draft revisions to the current jury instructions on eyewitness identification, taking into
account the system and estimator variables.
In this case, after the witness stated that he could not make an identification, the
investigating officers intervened and told him to focus, that they would protect him, if he “just
did what he had to do.” From that, the witness could infer that there was an identification to be
made and that he would be protected if he made it. This was suggestive and entitled the
Defendant to a pre-trial hearing, and he received one. However, the trial court used the Manson
Madison test and admitted the evidence. The appellate court remanded to the trial court for an
expanded evidentiary hearing, consistent with the Court’s opinion, in which the Defendant can
probe all relevant system and estimator variables, including the drug and alcohol use and
lighting.
Courts must carefully consider identification evidence to ensure that unreliable
identifications are not used. To do this, courts must rely on sound evidence of memory and
eyewitness testimony. The modified framework attempts to meet this challenge. Although
enhanced hearings should not be the norm in every case. In most cases, jurors will continue to
determine reliability of eyewitnesses. Thus, jurors must be educated as to the system and
estimator variables. In conclusion, the court stated:
We find that the scientific evidence considered at the remand hearing is reliable.
That evidence offers convincing proof that the current test for evaluating the
trustworthiness of eyewitness identifications should be revised. Study after study
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revealed a troubling lack of reliability in eyewitness identifications . . . In the
end, we conclude that the current standard for assessing eyewitness identification
evidence does not fully meet its goals. It does not offer an adequate measure for
reliability or sufficiently deter inappropriate police conduct. It also overstates the
jury’s inherent ability to evaluate the evidence offered by eyewitnesses who
honestly believe their testimony is accurate.
Id. at ___.
VIII.
Eyewitness identification jury instructions
In Gunning v. State, 347 Md. 332 (1997), the Court of Appeals held that it is usually
within the trial court’s discretion to grant a requested jury instruction on eyewitness
identification. In Gunning, however, the trial court abused its discretion when it denied a
requested eyewitness jury instruction because it stated that it denied all eyewitness jury
instructions.
In Tucker v. State, 407 Md. 368 (2009), the burglary Defendant was African-American,
and the victim was White. The victim identified the Defendant from nearby surveillance
footage. Defense counsel cross-examined the victim about inconsistencies in her testimony,
compared with earlier statements, including the color of the burglar’s sweatshirt and whether she
had made a positive identification of the assailant when he was wearing a hood. The victim was
also questioned on her confidence in her ability to identify members of another race and the
number of African Americans living in her community. The Defendant requested a cross-racial
instruction, which the State opposed. The trial court granted the requested cross-racial jury
instruction, but added a statement, requested by the State, that cross-racial identification is not a
factor in eyewitness identification and testimony.
The Court of Appeals held that the last sentence of the instruction, as requested by the
State, only provided one of the theories explained in Smith v. State, and it incorrectly stated the
Court’s holding in Smith. The Court noted that there are commentators that support and
commentators that do not support the effects of cross-racial identification. The jury instruction
addressed only those commentators that denied that there is a cross-racial effect. Because this
was an inaccurate statement of the law, which was not harmless, the Court reversed the
conviction.
In Smith & Mack v. State, 388 Md. 468 (2005), there was a cross-racial identification by
the victim of the two Defendants. At trial, defense counsel requested (1) to argue, in closing, the
difficulties of cross-racial identification, and (2) a jury instruction on cross-racial identification.
The trial counsel denied both requests. The Court of Special Appeals affirmed. The Court of
Appeals reversed, holding that defense counsel was entitled to argue the difficulties of crossracial identification. The Court did not address the jury instruction issue. At trial, the victim
testified that she was “extremely good with faces,” was “obsessed with people’s postures,” and
was a teacher, studying art and painting since childhood. The Court held that Defendants were
entitled to challenge the victim’s “educated identification” by arguing that her identification
should not be given the weight she had credited to her ability to identify them. Defense counsel
should have been permitted to argue the difficulties of cross-racial identification because the
victim’s identification was based, in part, on her superior ability to identify faces.
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