CHAPTER 10
LINEUPS AND OTHER
MEANS OF PRETRIAL
IDENTIFICATION
WHAT YO U WI L L L EA RN
■
The police use three procedures in pretrial identification: lineups, showups, and photographic
identifications.
■
Suspects usually invoke four constitutional rights
during these proceedings: the right to counsel, the
right to due process, the right to protection against
unreasonable searches and seizures, and the right to
protection against self-incrimination.
■
The rights to counsel and due process apply in
lineups, showups, and photographic identification,
but the rights to protection against unreasonable
searches and seizures and self-incrimination do not.
■
The U.S. Department of Justice has issued guidelines
for use in lineups, showups, and photographic
identifications, which seek to ensure fairness and
reliability.
■
There are other means of pretrial identification; among
them are DNA testing, polygraph examination, Breathalyzer tests, handwriting and hair sample analysis, and
brain fingerprinting.
KEY TERMS
brain fingerprinting
Daubert doctrine
DNA testing
formally charged with an
offense
Frye doctrine
Kirby rule
lineup
photographic identification
physical self-incrimination
showup
Wade–Gilbert rule
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T HE TOP 5 IM P O R T A NT C A S E S I N L I N E U PS A N D
OTH E R ME A N S O F P R E T R I A L I D E N T I F I C A T I O N
UNITED STATES V. WADE 1967
A police lineup or
other face-to-face confrontation after the accused has
been formally charged with a crime is considered a
“critical stage of the proceedings,” so the accused has a
right to have counsel present.
courts must consider all the circumstances leading to the
identification. Courts will find the procedure was unfair
only when, in light of all such circumstances, it was so
suggestive as to give rise to a real and substantial likelihood of irreparable misidentification.
GILBERT V. CALIFORNIA 1967 Police identification
procedures that are “fraught with dangers of suggestion” are
invalid because they violate the accused’s right to due process.
DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC.
KIRBY V. ILLINOIS 1972 There is no right to counsel at
police lineups or identification procedures prior to the
time the suspect is formally charged with a crime.
NEIL V. BIGGERS 1972 Identification procedures must
be fair. To determine whether the procedures were fair,
Federal courts now allow the admission of
expert testimony pertaining to scientific, technical, or
other specialized knowledge that will assist the judge or
jury in understanding the evidence or in determining
the fact in issue. The Daubert doctrine replaces the
Frye doctrine (still used in most state courts) as the
standard for admissibility of scientific evidence in
federal courts.
1993
CHAPTER OUTLINE
Lineups
Right to Counsel during Lineups
Right to Due Process Applies
Unreasonable Searches and Seizures
Self-Incrimination
Showups
Right to Counsel during Showups
Right to Due Process
Unreasonable Searches and Seizures
Self-Incrimination
Photographic Identifications
No Right to Counsel
Right to Due Process
Unreasonable Searches and Seizures
Self-Incrimination
Problems with Eyewitness Identification
“Hopelessly Unreliable”?
No Prescribed Guidelines
Eyewitness Identification Guidelines from the U.S. DOJ
For Lineups
For Showups
For Photographic Identifications
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Other Means of Identifying Suspects
DNA Testing
Polygraph Examinations
Breathalyzer™ Tests
Handwriting Samples
Hair Samples
Brain Fingerprinting
T
he police use a variety of procedures to verify that a suspect who has been taken
into custody is, in fact, guilty of an offense. These identification procedures serve
the dual functions of identifying suspects and providing evidence at trial. The police
generally use three procedures for the immediate identification of suspects:
■
■
■
A lineup, at which a victim of or witness to a crime is shown several possible
suspects at the police station for identification
A showup, at which only one suspect is shown to the witness or victim, usually
at the scene of the crime and immediately following a quick arrest of the
suspect
Photographic identification, at which photographs of possible suspects are
shown to the victim or witness
Four constitutional rights are often invoked by suspects during each of these pretrial
identification stages:
■
■
■
■
The right to counsel
The right to due process
The right against unreasonable searches and seizures
The right against self-incrimination
The three identification procedures and the four constitutional rights of suspects
during these proceedings are the main topics of discussion in this chapter. Their
relationship and interaction are summarized in Table 10.1.
In addition to eyewitness identifications, the police have other available tools
for identifying suspects, most of which are more scientific and reliable. This chapter
discusses some of them and some of the legal issues involved in their use. These are
■
TABLE 10.1 Summary of Eyewitness Identification and Suspects’ Constitutional Rights
Right to Counsel?
304
Right to Due
Process?
Right against
Unreasonable
Search and Seizure?
Right against
SelfIncrimination?
Lineups
Yes, if after a formal
charge; no, if before a
formal charge
Yes
No
No
Showups
Yes, if after a formal
charge; no, if before a
formal charge
Yes
No
No
Photographic
Identification
No
Yes
No
No
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DNA testing, polygraph examination, Breathalyzer tests, handwriting and hair sample analysis, fingernail scrapings, and brain-wave fingerprinting.
LI N E U P S
Black’s Law Dictionary defines a lineup as “a police identification procedure by
which the suspect in a crime is exhibited, along with others with similar physical
characteristics, before the victim or witness to determine if he can be identified as
having committed the offense.”1 The same source says, “Lineup involves and requires
lining up of a number of individuals from which one of those lined up may or may
not be identified as committer of a crime, and there cannot be a one-man lineup.”
(See Figure 10.1.)
The specifics of lineup procedures vary from one department to another,
but a lineup always involves a victim or a witness at the police station trying to
identify a suspect from a group of usually five or more individuals. Lineups are often
conducted with one-way mirrors so that those in the lineup cannot see the person
making the identification. Some departments photograph the lineup as a possible
defense if its fairness is challenged later.
RIGHT TO COUNSEL DURING LINEUPS
The right to counsel during lineups must be considered in terms of two stages: prior
to the filing of a formal charge and after the filing of a formal charge.
No Right to Counsel Prior to a Formal Charge: Kirby v. Illinois A suspect in a lineup has no right to a lawyer if he or she has not been formally charged
■
FIGURE 10
10.1
1 Li
Lineup FForm
SOURCE: Official lineup form of the Houston Police Department.
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HIGH
L I G H T SIMULTANEOUS VERSUS SEQUENTIAL LINEUPS
“There are two common types of lineups: simultaneous and sequential. In a simultaneous lineup
(used most often in police departments around
the country), the eyewitness views all the people
or photos at the same time. In a sequential lineup,
people or photographs are presented to the witness
one at a time.
“Typically, the law enforcement official or
lineup administrator knows who the suspect is.
Experts suggest that lineup administrators might—
whether purposely or inadvertently—give the witness verbal or nonverbal clues as to the identity of
Kirby v. Illinois (1972)
Miranda v. Arizona
(1966)
Coleman v. Alabama
(1970)
306
the suspect. For instance, if an eyewitness utters the
number of a filler [nonsuspect], the lineup administrator may say to the witness, ‘Take your time. . . .
Make sure you look at all the photos.’ Such a statement may effectively lead the witness away from the
filler. In a ‘double-blind’ lineup, however, neither
the administrator nor the witness knows the identity of the suspect, and so the administrator cannot
influence the witness in any way.”
SOURCE “Police Lineups: Making Eyewitness Identification More
Reliable,” NIJ Journal No. 258, October 2007, http://www.ojp.usdoj.
gov/nij/journals/258/police-lineups.html.
with an offense, meaning before an indictment, information, preliminary hearing,
or arraignment (Kirby v. Illinois, 406 U.S. 682 [1972]).
In Kirby v. Illinois, a robbery suspect was identified by the victim in a pretrial
procedure at the police station. No lawyer was present in the room during the identification, nor was Kirby advised by the police of any right to the presence of counsel.
Kirby later was convicted of robbery and appealed his conviction. The Court held
that Kirby was not entitled to the presence and advice of a lawyer during a lineup
or other face-to-face confrontation, because he had not been formally charged with an
offense. This is known as the Kirby rule. (See the Case Brief to learn more about
the Kirby case.) The identification process in which he participated was a matter of
routine police investigation and thus was not considered a “critical stage of the prosecution.” Only when the proceeding is considered a “critical stage of the prosecution”
is a suspect entitled to the presence and advice of counsel.
The Court has not defined what “critical stage” means, except to say that counsel
is needed in such other proceedings as custodial interrogations before or after charges
have been filed (Miranda v. Arizona, 384 U.S. 436 [1966]) and in preliminary
hearings to determine whether there is sufficient evidence to bring the case to a grand
jury (Coleman v. Alabama, 399 U.S. 1 [1970]).
Most lower courts have held that taking the accused into custody under an arrest
warrant is equivalent to filing a formal charge. But if the lineup is conducted after a
warrantless arrest, formal charges have not yet been filed; the suspect therefore has no
right to the presence of counsel. In these cases, though, officers must be careful not
to violate the suspect’s right to due process (discussed shortly). Some states require
the presence of counsel for the suspect at all lineups whether before or after formal
charges are filed. State law or local policy prevails. The stage at which formal charges
are considered to have been filed varies from state to state and even from one court to
another, so it is best to know the law in a particular jurisdiction.
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CASE
BRIEF
Kirby v. Illinois,
406 U.S. 682 (1972)
THE LEADING CASE ON THE RIGHT
TO COUNSEL DURING A LINEUP BEFORE
FORMAL CHARGES ARE FILED
answered this question in the negative, saying that
what happened in Kirby was a matter of routine
police investigation; hence, it was not considered
a “critical stage of the prosecution.” The Court
reasoned that a postindictment lineup is a critical stage, whereas a preindictment lineup is not.
Some justices disagreed with this distinction, but
the majority of the Court apparently felt that it
was a good standard to use in determining when a
suspect’s right to counsel applies in pretrial identification procedure.
Facts: A man named Willie Shard reported to
the Chicago police that the previous day, on a
Chicago street, two men had robbed him of a
wallet containing traveler’s checks and a Social
Security card. The following day, two police
officers stopped Kirby and a companion named
Bean. When asked for identification, Kirby
produced a wallet that contained three traveler’s
checks and a Social Security card, all bearing the
name of Willie Shard. Papers with Shard’s name
on them were also found in Bean’s possession.
The officers took Kirby and his companion to a
police station. Only after arriving at the police
station and checking the records there did the
arresting officers learn of the Shard robbery.
A patrol car was dispatched to Shard’s place of
employment, and it brought him to the police
station. Immediately upon entering the room
in the police station where Kirby and his companion were seated at a table, Shard positively
identified them as the men who had robbed him
two days earlier. No lawyer was present in the
room, and neither Kirby nor his companion had
asked for legal assistance or been advised by the
police of any right to the presence of counsel.
Kirby was convicted of robbery and appealed his
conviction, alleging that his identification should
have been excluded because it was extracted
unconstitutionally.
Issue or Issues: Was Kirby entitled to the presence
and advice of a lawyer during this pretrial identification stage? No.
Holding: There is no right to counsel at police
lineups or identification procedures prior to the
time the suspect is formally charged with the crime.
Case Significance: Kirby was decided five years
after United States v. Wade. It clarified an issue
that was not directly resolved in Wade: whether
the ruling in Wade applies to cases in which
the lineup or pretrial identification takes place
prior to the filing of a formal charge. The Court
Excerpts from the Decision: The 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. It is this point, therefore, that marks the
commencement of the “criminal prosecutions”
to which alone the explicit guarantees of the
Sixth Amendment are applicable.
In this case, we are asked to import into a
routine police investigation an absolute constitutional guarantee historically and rationally
applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less
than a year after Wade and Gilbert were decided,
the Court explained the rule of those decisions
as follows: “The rationale of those cases was
that an accused is entitled to counsel at any
‘critical stage of the prosecution,’ and that a
post-indictment lineup is such a ‘critical stage.’ ”
We decline to depart from that rationale today
by imposing a per se exclusionary rule upon
testimony concerning an identification that took
place long before the commencement of any
prosecution whatever.
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United States v. Wade
(1967)
Gilbert v. California
(1967)
Right to Counsel after Formal Charge In contrast, a lineup or other faceto-face confrontation after the accused has been formally charged with an offense is
considered a critical stage of the proceedings; therefore, the accused has a right to
have counsel present (United States v. Wade, 388 U.S. 218 [1967]). As with other
rights, however, the right to counsel at this stage may be waived by the suspect.
In the Wade case, the suspect was arrested for bank robbery and later indicted.
He was subsequently assigned a lawyer to represent him. Fifteen days after the lawyer
was assigned, an FBI agent, without notice to Wade’s lawyer, arranged to have two
bank employees observe a lineup of Wade and five or six other prisoners in a courtroom of the local county courthouse. Each person in the lineup wore strips of tape
like those allegedly worn by the robber during the bank robbery. On request, each
said something like “Put the money in the bag,” the words allegedly uttered by the
robber. Wade was tried for the offense and convicted. He appealed, claiming that the
bank employees’ courtroom identifications were unconstitutional because the lineup
violated his rights to protection against self-incrimination and to the assistance of
counsel.
The Court rejected the first claim but upheld the second. The Court noted that
there is a grave potential for prejudice, intentional or not, in the pretrial lineup, which
might do damage at trial. Because the presence of counsel can often avert prejudice and
ensure a meaningful confrontation at trial, the lineup is a “critical stage of the prosecution” at which the accused is as much entitled to the aid of counsel as at the trial itself.
Is the filing of a formal charge a logical dividing line by which to determine whether
an accused should have a right to counsel in cases involving pretrial identification? The
Supreme Court says yes. In the Kirby case, the Court said that “the initiation of judicial
criminal proceedings is far from a mere formalism,” adding that “it is . . . only then that
the adverse positions of government and defendant have solidified. . . . [A] defendant
finds himself faced with the prosecutorial forces of organized society and immersed in
the intricacies of substantive and procedural criminal law.”
Critics of the Court maintain that the boundary between “prior to” and “after”
filing is artificial and that any identification made against the suspect at any stage
is important in establishing guilt or innocence. The Court rejects this, saying the
difference is significant enough to require the presence of counsel in one and not in
the other. (See the Case Brief to learn more about the Wade case.)
In a companion case to Wade, Gilbert v. California, 388 U.S. 263 (1967), the
Court held that requiring a suspect to give a handwriting sample without a lawyer
present does not violate the suspect’s right to avoid compulsory self-incrimination or
the right to counsel. In the Gilbert case, the lineup was conducted in an auditorium
in which about a hundred witnesses to alleged offenses by the suspect were gathered.
They made wholesale identification of the suspect in one another’s presence. Aside
from being legally deficient because of the absence of counsel, this procedure, the
Court said, was “fraught with dangers of suggestion.”
The two cases led to the rule defining at what point counsel must be allowed at
lineups. We will look at this rule and examine the relationship between the right to
counsel and the Miranda warnings, the role of the lawyer during lineups, and what
happens when the counsel for the suspect fails to appear.
The Wade–Gilbert rule Together, the decisions in United States v. Wade and Gilbert
v. California are known in legal circles as the Wade–Gilbert rule, as distinguished from
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the Kirby rule (taken from Kirby v. Illinois) discussed earlier. According to Wade–Gilbert,
after being formally charged with a crime, a suspect in a lineup or other confrontation
is entitled to have a lawyer present. Failure to provide a lawyer at a lineup after a formal
charge has been filed against the suspect makes the evidence inadmissible. However, it
does not automatically exclude the testimony of the witness if he or she can identify
the accused in court without having to rely on the earlier lineup identification (Gilbert
v. California, 388 U.S. 263 [1967]).
To determine that this in-court testimony is admissible, the judge must conclude that the testimony is “purged of the primary taint” caused at the lineup. For
example, suppose the police require X, a suspect, to appear in a lineup without a
lawyer after he has been indicted by a grand jury. The victim identifies X as the
person who raped her. This identification is invalid because X was not assigned
a lawyer. However, if it can be established in court that the victim would have
identified X in court anyway without the lineup (if, for instance, it is established
that she, in fact, saw X a couple of times before the lineup or had a good view of
him at the time of the crime), then the identification may be admissible because
the judge may determine that it has been purged of the illegality associated with
the lineup.
A suspect cannot refuse to appear in the lineup even if the lawyer advises against
appearing. The lawyer is present primarily to observe the proceedings. If the suspect
cannot afford a lawyer, the state must appoint one. A lawyer may be appointed temporarily just for the lineup to protect a suspect from possible prejudicial actions by
the police. The assumption is that even a temporary counsel can adequately protect
a suspect’s right to due process.
In summary, the answer to the question, Does a suspect have a right to a lawyer
during lineups? is as follows:
■
■
Before a formal charge is filed: No (Kirby v. Illinois [1967])
After a formal charge is filed: Yes (Wade v. Gilbert [1967] and Gilbert v.
California [1967])
The right to counsel and the Miranda warnings Why is a suspect not entitled
to a lawyer during a police lineup prior to the filing of formal charges and yet is
entitled to the Miranda warnings (which state that the suspect has a right to a lawyer
and that, if the suspect cannot afford a lawyer, the state will provide one) immediately upon arrest even if he or she is still out in the streets? The answer is that the
Miranda warnings must be given any time a police officer interrogates a suspect who
is in custody. This rule protects the suspect’s right against self-incrimination. By
contrast, lineups do not involve any form of interrogation, and therefore the danger
of self-incrimination is merely physical, not testimonial or communicative, to which
the Fifth Amendment right applies.
The lawyer during the lineup The main role of a lawyer is to make sure the
procedure is fair. The lawyer’s function is that of an “interested observer” who makes
sure that things are done right and that the suspect’s due process rights are not
violated. Authors Lloyd Weinreb and James Whaley express it this way: “The role of
the attorney at a lineup is that of a nonparticipant observer.”2 The Supreme Court,
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CASE
BRIEF
United States v. Wade,
388 U.S. 218 (1967)
THE LEADING CASE ON THE RIGHT TO COUNSEL
AFTER FORMAL CHARGES ARE FILED
Facts: A man with a small piece of tape on
each side of his face entered a bank, pointed
a pistol at a cashier and the vice president of
the bank, and forced them to fill a pillowcase
with the bank’s money. The man then drove
away with an accomplice. An indictment was
returned against Wade and others suspected
of being involved in the robbery. Wade was
arrested and counsel was appointed. Fifteen
days later, without notice to his counsel, Wade
was placed in a lineup to be viewed by the bank
personnel. Both employees identified Wade as
the robber, but in court they admitted seeing
Wade in the custody of officials prior to the
lineup. At trial, the bank personnel reidentified
Wade as the robber and the prior lineup identifications were admitted as evidence. Wade was
convicted of bank robbery.
Issue or Issues: Should the courtroom identification of an accused be excluded as evidence because
the accused was exhibited to the witness before trial
at a postindictment lineup conducted for identification purposes and without notice to and in the
absence of the accused’s appointed lawyer? Yes.
Holding: A police lineup or other “face-toface” confrontation after the accused has been
formally charged with a crime is considered a
“critical stage of the proceedings”; therefore,
the accused has the right to have counsel
present. The absence of counsel during such
proceedings renders the evidence obtained
inadmissible.
Case Significance: The Wade case settled the
issue of whether an accused has a right to
counsel after the filing of a formal charge. The
standard used by the Court was whether identification was part of the “critical stage of the
proceedings.” The Court, however, did not say
exactly what this phrase meant; hence, lower
courts did not know where to draw the line.
In a subsequent case, Kirby v. Illinois (see the
Case Brief on page 307), the Court said that
310
any pretrial identification prior to the filing of a
formal charge was not part of a “critical stage of
the proceedings,” and therefore no counsel was
required. The Wade case did not authoritatively
state what is meant by “formal charge” either,
so that phrase has also been subject to varying interpretations, depending on state law or
practice.
Excerpts from the Decision: Since it appears
that there is grave potential for prejudice,
intentional or not, in the pretrial lineup, which
may not be capable of reconstruction at trial,
and since presence of counsel itself can often
avert prejudice and assure a meaningful confrontation at trial, there can be little doubt
that for Wade the post-indictment 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.” No substantial countervailing policy considerations
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. Moreover,
we leave open the question whether the presence of substitute counsel might not suffice
where notification and presence of the suspect’s
own counsel would result in prejudicial delay.
And to refuse to recognize the right to counsel
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. We rejected similar logic
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in Miranda v. Arizona concerning presence of
counsel during custodial interrogation. 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.
however, has not given any authoritative guidelines on the role of a lawyer during
lineups. Most commentators believe the lawyer should, at the very least, observe the
proceedings—including taking notes or making a recording—and be able to state any
objection to the proceedings. Others have suggested that the lineup procedure should
be treated as an adversarial proceeding in which the lawyer may question the witnesses, make objections, and have any reasonable recommendations respected by the
police. Because no guidelines have been set by the Supreme Court, the officer should
follow the practice in the local jurisdiction. Most jurisdictions follow the “observe the
proceeding” rule for the lawyer and allow nothing beyond that.
Lawyers should be accorded all professional courtesies but must not be allowed
to control the proceedings; nor should an attorney’s disruptive presence be tolerated.
If the lawyer acts improperly, it is best to invite the judge or the district attorney
to witness the proceedings. Counsel should not be allowed to question the witness
before, during, or after the lineup; however, if an attorney asks to speak to his or her
client prior to or after the lineup, he or she should be allowed to do so. If the suspect
has an attorney (that is, after the suspect has been formally charged with the offense),
the attorney must be notified of the lineup in advance.
If the main role of a lawyer during the lineup is as an observer (unless local practice provides otherwise), how does the suspect benefit from the lawyer’s presence?
One justice of the Court has answered thus: “Attuned to the possibilities of suggestive
influences, a lawyer could see any unfairness at a lineup, question the witnesses about
it at trial, and effectively reconstruct what had gone on for the benefit of the jury or
trial judge” (United States v. Ash, 413 U.S. 300 [1973]).
United States v. Ash
(1973)
What if the lawyer fails to appear? The officer has a number of options if the
lawyer, after having been duly informed of the lineup, fails to show up:
■
■
■
■
Ask the suspect if he or she is willing to waive the right to counsel; such a waiver
is valid as long as it is voluntary and intelligent. The waiver is best obtained in
writing.
Postpone the lineup to another time when counsel can be present.
Get a substitute counsel only for the lineup.
If the preceding options are not feasible, conduct a “photo lineup”: Those
appearing are photographed or videotaped in one room, and the witness is
kept isolated in a different room. The photograph or tape is then shown to
the witness. The theory is that “because there is no constitutional right to have
counsel present when a suspect’s photograph is shown to witnesses for identification, the Sixth Amendment is not implicated.”3
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RIGHT TO DUE PROCESS APPLIES
Neil v. Biggers (1972)
Foster v. California (1969)
A suspect has a right to due process of law in a lineup. Due process means “fundamental fairness.” This means that the lineup must not be unfair; that is, it must not be
impermissibly suggestive. In the words of the Court: “The 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” (United States v. Wade, 388 U.S. 218 [1967]).4
In determining what is fair or unfair in identification procedures, courts generally consider all the circumstances leading up to the identification. Courts will find
the procedure was unfair only when, in light of all such circumstances (“totality of
circumstances”), the identification procedure is so impermissibly suggestive as to give
rise to a real and substantial likelihood of irreparable misidentification (Neil v. Biggers,
409 U.S. 188 [1972]). When that point is reached is determined by the trial court,
with some guidelines provided by the Supreme Court, as the cases discussed in this
chapter show. Recall that, in Gilbert v. California, 388 U.S. 363 (1967), the Court
held that a lineup conducted in an auditorium where the defendant was identified by
about a hundred witnesses violated the suspect’s due process rights, because the procedure was “fraught with dangers of suggestion.” Similarly, the use of force to compel
the suspect to appear in a lineup may also make the proceeding so suggestive as to
violate the suspect’s due process rights.
In Foster v. California, 394 U.S. 440 (1969), the Court found that a pretrial
identification by a certain David, the only witness to the crime, violated due process.
In the Foster case, the suspect was lined up with two other men several inches shorter.
The suspect was close to 6 feet tall, whereas the two other men were short—“five feet
five or six.” Only the suspect wore a jacket similar to that of the robber. When the
lineup produced no positive identification, the police used a one-man showup of the
suspect. Because even the showup was inconclusive, the police later used a second
lineup in which only the suspect was a repeater from the earlier lineup.
The Court said that the suspect’s due process rights were violated, because under
those conditions the identification of the suspect was inevitable. The Court said:
“The suggestive elements in this identification procedure made it all but inevitable
that David would identify petitioner whether or not he was in fact ‘the man.’ In
effect, the police repeatedly said to the witness, ‘This is the man.’”
Examples of impermissibly suggestive identification procedures are: (1) the suspect is Asian or African American, and there is only one person of that category in the
lineup; (2) before the lineup, the police give hints to the witness about the physical
characteristics of the suspect; (3) the suspect in the lineup is in jail clothes or wearing
handcuffs; and (4) the police allow witnesses to talk to each other and share observations before the lineup takes place.
UNREASONABLE SEARCHES AND SEIZURES
Schmerber v. California
(1966)
312
In Schmerber v. California, 384 U.S. 757 (1966), the defendant claimed a violation
of the guarantee against unreasonable search and seizure during pretrial identification. At the request of a police officer, a sample of Schmerber’s blood was taken by a
doctor in a hospital for use as evidence in a drunk-driving case. The defendant raised
the issue on appeal, claiming that the police should have obtained a warrant before
extracting blood from him.
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The Court rejected this claim, saying that the officer might reasonably have
believed that he was confronted with an emergency in which the delay necessary to
obtain a warrant, under the circumstances, would have led to the destruction of the
evidence. The Court added, “Particularly in a case such as this, where time had to be
taken to bring the accused to a hospital and to investigate the scene of the accident,
there was no time to seek out a magistrate and secure a warrant. Given these special
facts, we conclude that the attempt to secure evidence of blood-alcohol content in
this case was an appropriate incident to petitioner’s arrest.”
Claims of unreasonable search and seizure in pretrial identification procedures
are few and, when raised, do not succeed. They fail because they basically allege, as
in Schmerber, that the police should have obtained a warrant before conducting the
identification procedure.
Compelling a suspect to appear in a lineup or showup is a form of seizure, but it
is usually easily justified under the numerous exceptions to the warrant rule, such as
the exigent circumstances justification invoked by the police in Schmerber. Moreover,
many lineups occur after a warrant has been issued or the suspect has been brought
before a magistrate. In these cases, the search and seizure challenge becomes moot
because of the issuance of a warrant.
SELFINCRIMINATION
Suspects may think they cannot be required to appear in a lineup or showup because
it forces them to incriminate themselves. That claim appears logical—indeed, it is
incriminating to be fingered as the culprit in a lineup or to be identified in a showup.
However, the Supreme Court has repeatedly rejected this claim. The rule is that a
suspect may be required to appear in a police lineup before or after being charged
with an offense. The reason is that the right against compulsory self-incrimination
applies only to evidence that is testimonial or communicative, which occurs when a
suspect is required to “speak his guilt”—or communicate orally. It does not extend to
physical self-incrimination, which involves the physical body or objects.
Courts have decided that the government can force a suspect to do the following
because they involve only the giving of physical, not testimonial, evidence:
■
■
■
■
■
■
Appear in a police lineup before or after formal charge.
Give a blood sample, even unwillingly, as long as proper conditions are present;
even if state law allows a suspect to refuse to take a blood-alcohol test, a refusal
may be constitutionally introduced as evidence of guilt in court.
Submit to a photograph.
Give handwriting samples.
Submit to fingerprinting.
Repeat certain words or gestures or give voice exemplars (the voice here is used
as an identifying physical characteristic, not as oral testimony).
The rule that the Fifth Amendment right not to incriminate oneself protects only
against self-incrimination that is testimonial or communicative rather than physical was reiterated in Schmerber v. California, 384 U.S. 757 (1966). Following the
Schmerber decision, the Court ruled in United States v. Wade, 388 U.S. 218 (1967) that
appearance in a police lineup is a form of physical, not testimonial, self-incrimination
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and therefore is not protected by the Fifth Amendment. There is no self-incrimination
even if the suspect is required to “speak up” for identification by repeating phrases
such as “Put the money in the bag.” This is because the purpose of having the suspect
speak up is not to evaluate what is said, which would be testimonial, but to determine
the level, tone, and quality of voice, which are physical properties.
It follows from the Schmerber ruling that a suspect does not have a constitutional
right to refuse to appear or participate in a lineup. A suspect who is in the custody
of the police may be required to appear in a lineup. However, the use of force to
compel a suspect’s appearance is inadvisable because it might constitute a violation
of the suspect’s right to due process. If the suspect is not in custody, appearance in a
lineup may be compelled only by court order.5 If a suspect refuses to appear despite a
court order, he or she may be held in contempt of court and kept in jail. A suspect’s
refusal to cooperate in the identification procedure may also be commented on by
the prosecution during the trial. Alternatively, if a suspect refuses to participate in a
lineup, the police might be justified in arranging a showup, in which only the suspect
is viewed by the witness.6
SHO WUPS
A showup is defined as a “one-to-one confrontation between a suspect and a witness
to crime.” It usually “occurs within a short time after the crime or under circumstances which would make a lineup impractical or impossible.”7 As in the case of
lineups, the rights to counsel and due process apply; the rights to protection against
unreasonable searches and seizures and against self-incrimination do not.
RIGHT TO COUNSEL DURING SHOWUPS
As in the case of lineups, the right to counsel during showups must be considered
in terms of two stages: prior to the filing of a formal charge and after the filing of a
formal charge.
Prior to a Formal Charge In most cases, the police bring a suspect to the scene
immediately after the commission of a crime, to be identified by the victim or other
eyewitnesses. Because the suspect has not been charged with a crime, there is no
right to counsel (Kirby v. Illinois, 406 U.S. 682 [1972]). For example, suppose that,
minutes after a purse is snatched, a suspect fitting the description given by the victim
is apprehended several blocks away and is brought back to the scene of the crime for
identification by the victim. The suspect has no right to counsel even if he or she
requests it. If the police question the suspect, however, they must give the Miranda
warnings, because the situation has escalated beyond a police lineup, where no questions are asked, to a custodial interrogation, which then triggers Miranda.
Moore v. Illinois (1977)
314
After a Formal Charge The rule is different once the adversarial judicial
criminal proceedings are initiated. In Moore v. Illinois, 434 U.S. 220 (1977), for
example, a rape suspect appeared with a police officer in the courtroom for a preliminary hearing to determine whether his case should be sent to the grand jury
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and to set bail. After the suspect’s appearance before the judge, the rape victim
was asked by the prosecutor if she saw the perpetrator in the courtroom. She then
pointed to the suspect. During the trial, this identification was admitted in court
over the defendant’s objections. But on appeal, the Supreme Court held that this
violated the defendant’s right to counsel; because the adversarial criminal proceedings had been initiated at that time, the defendant was entitled to a lawyer at that
form of showup.
RIGHT TO DUE PROCESS
The leading case on the right to due process in showups is Neil v. Biggers, 409 U.S.
188 (1972). In this case, the rape victim could give no description of her attacker
other than that he was a black man wearing an orange-colored shirt and that he had
a high-pitched voice. The victim was assaulted in her dimly lighted kitchen and then
forcibly taken out of the house and raped under a bright, full moon. The victim went
through a number of photographs and was shown several lineups but could not make
a positive identification. The police arrested the defendant seven months later on
information supplied by an informant. The defendant was brought before the victim
alone. The police showed the victim the defendant’s orange-colored shirt and asked
her if she could identify the defendant’s voice (from an adjoining room). No other
voices were provided for comparison.
The Court held that, although the confrontation procedure itself was suggestive, the totality of circumstances made the identification reliable. Among the factors
considered by the Court were “the opportunity of the witness to view the criminal at
the time of the crime, the witness’s degree of attention, the accuracy of the witness’s
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.”
Considering all these factors, the Court concluded that the totality of circumstances
showed that the identification was reliable, saying:
The victim spent a considerable period of time with her assailant, up to half
an hour. She was with him under adequate artificial light in her house and
under a full moon outdoors, and at least twice, once in the house and later
in the woods, faced him directly and intimately. She was no casual observer,
but rather the victim of one of the most personally humiliating of all crimes.
Her description to the police, which included the assailant’s approximate age,
height, weight, complexion, skin texture, build, and voice, might not have
satisfied Proust, but was more than ordinarily thorough. She had “no doubt”
that respondent was the person who raped her.
The courts take five factors into account when determining whether, in the totality
of circumstances, the suspect’s due process rights have been violated during a lineup
(Neil v. Biggers, 409 U.S. 188 [1972]):
■
■
■
■
■
The witness’s opportunity to view the criminal at the time of the crime
The witness’s degree of attention at that time
The accuracy of any prior description given by the witness
The level of certainty demonstrated by the witness at the identification
The length of time between the crime and the identification
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Stovall v. Denno (1967)
Although Neil v. Biggers is a photographic showup case, the test to determine
the violation of a suspect’s due process rights should be the same in lineups and photographic identifications because they are all forms of eyewitness identification. In
sum, Neil v. Biggers is the leading case on eyewitness identification procedures and
the right to due process. In every case, the question courts ask is: Was the procedure
fair or was it unduly suggestive?
In Stovall v. Denno, 388 U.S. 293 (1967), the Court ruled a showup in a hospital
valid because the possible unfairness of the showup was justified by the urgent need to
confront the suspect because the only living eyewitness, who was hospitalized, was in
danger of dying. In this case, the defendant, Stovall, was convicted and sentenced to
die for murdering a certain Dr. Behrendt. Stovall was arrested the day after the murder and, without having been given time to obtain a lawyer, was taken by police officers to the hospital to be viewed by Mrs. Behrendt, who had been seriously wounded
by her husband’s assailant. After observing Stovall and hearing him speak, when she
was told to do so by an officer, Mrs. Behrendt identified him as the murderer of her
husband. On appeal, Stovall claimed a violation of his right to due process.
The Court rejected his claim, quoting with approval the findings of the State
Court of Appeals, which said:
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.
Showups, however, have been under legal siege lately because of their unreliability. In
a 2005 decision, the Wisconsin State Supreme Court had these strong words about
showups:
We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of
circumstances, the procedure was necessary. . . . A lineup or photo array is
generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a
misidentification. In a showup, however, the only option for the witness is
to decide whether to identify the suspect.8
UNREASONABLE SEARCHES AND SEIZURES
As in the case of lineups, showups are not considered unreasonable searches and seizures, because the circumstances usually warrant them. They are usually conducted at
the scene of the crime (as when the victim is taken to the scene to identify an alleged
purse snatcher) and immediately following the quick arrest of the suspect. Showups
are a form of intrusion, but they are usually justified under the exigent circumstances
exception because of the absence of an opportunity to obtain a warrant. Moreover,
the degree of intrusion is usually minimal and necessary under the circumstances.
316
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SELFINCRIMINATION
As in the case of lineups, showups do not violate the prohibition against self-incrimination
because, although self-incriminatory, the self-incrimination involved is real or physical,
not testimonial or communicative.
P H O T O G R A P H I C I DENT I F I C A T I O NS
Photographic identification (also known as rogues’ gallery or mug-shot identification) is a process in which a victim or witness is shown photographs of possible
suspects. Only the right to due process applies in this form of pretrial identification.
NO RIGHT TO COUNSEL
There is no right to counsel when the prosecution seeks to identify the accused by
displaying photographs to witnesses prior to trial (United States v. Ash, 413 U.S. 300
[1973]). This is true even if the suspect has already been formally charged with the
crime.
In United States v. Ash, the defendant was charged with five counts of bank
robbery. In preparing for trial, the prosecutor decided to use a photographic display
to determine whether the witnesses he planned to call would be able to make in-court
identifications of the accused. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who 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.
This postindictment identification provided the basis for Ash’s claim on appeal
that he was denied the right to counsel at a “critical stage” of the prosecution. The
Court disagreed, holding that photographic identification is not like a lineup, because
the suspect is not present when the witnesses view the photographs. Because the main
reason for lawyers’ presence at lineups is to prevent suspects from being disadvantaged
by their ignorance and failure to ascertain and object to biased conditions, there is no
need for lawyers when the suspects are absent.
RIGHT TO DUE PROCESS
Simmons v. United States
(1968)
As in the case of lineups and showups, the right to due process applies, meaning
that the photographic identification must not be unduly suggestive. In photographic
identifications, a number of photographs must be shown to avoid charges of impermissible suggestion. In addition, there should be nothing in the photographs that
focuses attention on a single person. For example, if the suspect is Hispanic, the
photographs should feature several Hispanic individuals. To do otherwise would be
fundamentally unfair to the suspect and would violate due process.
In Simmons v. United States, 390 U.S. 377 (1968), witnesses identified a bank
robbery suspect from six photos obtained from a relative a day after the crime. This
was followed by an in-court identification of the suspect by the same five witnesses.
The Court held that the photographic identification was not unnecessarily suggestive
so as to create a “very substantial likelihood of irreparable misidentification.” Among
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Manson v. Brathwaite
(1977)
the factors the Court took into account were the seriousness of the crime, the need for
immediate apprehension, and the fact that the risk of misidentification was small.
In another case, Manson v. Brathwaite, 432 U.S. 98 (1977), the Court held that
the showing of a single photograph to a witness was unnecessary and suggestive, but the
Court nonetheless admitted the identification based on the totality of circumstances.
In this case, Glover, an undercover state police officer, purchased heroin from
a seller through the open doorway of an apartment while standing for two or three
minutes within two feet of the seller in the hallway, which was illuminated by natural
light. A few minutes later, Glover described the seller to another police officer as “a
colored man, approximately five feet eleven inches tall, dark complexioned, black
hair, short Afro style, and having high cheekbones, and of heavy build.” The other
officer, suspecting that the defendant was the seller, left a police photograph of the
suspect in Glover’s office, who viewed it two days later and identified the individual
in the photograph as the seller. The photograph was introduced during the trial as the
picture of the suspect, and an in-court identification was made.
On appeal, the Court agreed with the trial court that the examination of the
single photograph was unnecessary and suggestive but ruled that the identification in
court did not have to be excluded. The Court noted that “Glover, no casual observer
but a trained police officer, had a sufficient opportunity to view the suspect, accurately
described him, positively identified respondent’s photograph as that of the suspect,
and made the photograph identification only two days after the crime.” The photograph identification alone would have violated the defendant’s due process right, but
the totality of circumstances justified admission of the court identification.
This case reiterates previous Court decisions holding that the suggestiveness of the
identification procedure is but one of the factors courts should take into account to
determine whether a suspect’s due process rights were violated. Much more important
than a single factor is the totality of circumstances. The Court in Brathwaite also restated
the main concern of the Court in identification cases, saying, “Reliability is the linchpin
in determining the admissibility of identification testimony for confrontations.”
UNREASONABLE SEARCHES AND SEIZURES
Photographic identification does not involve any unreasonable search and seizure because
no search or seizure takes place, as long as the photographs are obtained legally. Showing
photographs does not come under the Fourth Amendment, nor is it unduly intrusive.
HIGH
L I G H T DUE PROCESS AND PHOTOGRAPHIC IDENTIFICATION
“We hold that each case must be considered on
its own facts, and that convictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on
that ground only if the photographic identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood
318
of irreparable misidentification. This standard
accords with our resolution of a similar issue in
Stovall v. Denno (388 U.S. 293 [1967]), and with
decisions of other courts on the question of identification by photograph.”
SOURCE Simmons v. United States, 390 U.S. 377 (1968).
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InAction
PHOTOGRAPHIC IDENTIFICATION OF A PURSE SNATCHER
Mrs. Johnson leaves the grocery store with a cart
of groceries and is loading them in her vehicle.
Suddenly a man walks up to Mrs. Johnson, pushes
her down, and steals her purse. Witness Y sees the
crime and runs to the aid of Mrs. Johnson. The
police are called. Officer Z responds and gets the
suspect’s description. Officer Z is acquainted with
a possible suspect (X) who lives in the area and
has committed similar offenses in the past (that
is, using the same M.O.). Officer Z goes to the
police station and obtains a mug shot of suspect
X. Officer Z returns to the scene of the crime and
shows the mug shot to Mrs. Johnson and witness
Y. Officer Z asks, “Is this him”? Mrs. Johnson and
witness Y both say yes. Based on this evidence,
Officer Z arrests suspect X. During the trial, both
Mrs. Johnson and witness Y identify the suspect
in the courtroom as the offender.
1. Were Officer Z’s actions at the scene appropriate? If not, what should Officer Z have done
differently?
2. Are Mrs. Johnson’s and witness Y’s identifications at trial valid? Why or why not?
SELFINCRIMINATION
There is no self-incrimination when photographs are shown because, as in the case
of lineups and showups, the self-incrimination involved is real or physical, not testimonial or communicative.
P R O B LE MS W I T H EYEWI T NESS I DENT I F I C A T I O N
There are problems with eyewitness identification. Among them are charges that it is
“hopelessly unreliable” and lacks prescribed guidelines.
“HOPELESSLY UNRELIABLE”?
All three forms of eyewitness identification—lineups, showups, and photographic
identification—have raised serious concerns among law and criminal justice professionals because of their proven unreliability in many cases. Eyewitness identification
used to be considered the most damning piece of evidence against a suspect. Various
studies show, however, that eyewitness identification is not always reliable and that
other forms of circumstantial evidence (DNA or fingerprints, for example) are more
accurate in identifying suspects or proving guilt.
A U.S. Department of Justice report notes that eyewitness testimony is far from
infallible and that “even honest and well-meaning witnesses can make errors, such
as identifying the wrong person or failing to identify the perpetrator of a crime.”9
A journal article written by noted authorities John Turtle, R. C. L. Lindsay, and
Gary Wells says that “there are approximately 100 documented cases in the U.S. in
which a convicted person who has served time in prison has been exonerated by DNA
evidence indicating that someone else committed the crime. It has been estimated
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Wisconsin v. Dubose
(2005)
that of those 100 cases, over 75% were primarily the result of mistaken eyewitness
identification of the convicted suspect.”10
In Wisconsin v. Dubose, 205 WI 126 (2005), the Wisconsin Supreme Court summarized the state of research on eyewitness testimony as follows:
Over the last decade, there have been extensive studies on the issue of identification evidence, research that is now impossible for us to ignore. . . . These studies
confirm that eyewitness testimony is often “hopelessly unreliable.” The research
strongly supports the conclusion that eyewitness misidentification is now the
single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.”11
NO PRESCRIBED GUIDELINES
Given current skepticism about the reliability of eyewitness evidence, the pressure is
on for police departments and prosecutors to ensure that identification procedures
are fair and reliable. Despite the frequent use of lineups for suspect identification,
standards and guidelines vary from state to state and even within a state. A State of
Virginia Crime Commission recently found that many law enforcement agencies
within that state “have no written policies on lineup procedures, and . . . smaller
departments often lack the resources needed to produce reliable lineups.”12 That study
also says that “currently there is no law requiring Virginia police and sheriff ’s departments to have a written policy on conducting lineups.”
In cases of photographic identification, studies show that “when witnesses are
shown all six photos at once—rather than one at a time—a natural tendency kicks
in to compare faces and judge which looks most like the one they remember. They
make a relative judgment as opposed to a true recognition,” according to experts.13
Many states do not have prescribed legislative or administrative guidelines for police
departments to follow, and so practices vary from one department to another.
In sum, studies on eyewitness testimony show low reliability and flawed procedures. The evidence is strong that eyewitness testimony has led to numerous wrongful convictions, even in death penalty cases. Courts and legal scholars have expressed
skepticism over its credibility; thus, law enforcement agencies across the nation are
revising their procedures to ensure that procedures are fair and highly reliable based
on the totality of circumstances and not simply on mere eyewitness identification.
E Y E W I T N E S S I D E N T I F I C A T I O N GU I DELI NES F R O M
TH E U . S . D O J
The National Institute of Justice of the U.S. Department of Justice (DOJ) released a
research report in 2001 titled “Eyewitness Evidence: A Guide for Law Enforcement.”14
This major study involved a 34-member working group of top criminal justice professionals in law enforcement, law, psychology, and other fields. Their recommendations are supported by social science research of the last 20 years, which “combines
research and practical perspectives.” The group’s task was to identify the “best practices” in the field of eyewitness evidence and “relay this information to criminal
justice professionals who can practically apply this knowledge.”
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The guidelines have not been enacted into law, and therefore their adoption by
law enforcement agencies is optional. Nonetheless, this work constitutes the most
recent, comprehensive, and authoritative effort by the U.S. Department of Justice, or
any other law enforcement agency, to produce guidelines that ensure fair and legally
defensible identification procedures. These guidelines are reproduced here because
they are currently the most frequently used models in numerous jurisdictions that
are establishing or revising pretrial identification guidelines. The guidelines are for
lineups, showups, and photographic identifications.
FOR LINEUPS
The report offers guidelines for composing and presenting lineups.
Composing In composing a live lineup, the investigator should:
■
■
■
■
■
■
■
Include only one suspect in each identification procedure.
Select fillers who generally fit the witness’s description of the perpetrator. When
the description of the perpetrator provided by the witness is limited or inadequate, or when the description of the perpetrator differs significantly from
the appearance of the suspect, fillers should resemble the suspect in significant
features.
Consider placing suspects in different positions in each lineup, both across cases
and with multiple witnesses in the same case. Position the suspect randomly
unless, where local practice allows, the suspect or the suspect’s attorney requests
a particular position.
Include a minimum of four fillers (nonsuspects) per identification procedure.
When showing a new suspect, avoid reusing fillers in lineups shown to the
same witness.
Complete uniformity of features is not required. Avoid using fillers who so
closely resemble the suspect that a person familiar with the suspect might find
it difficult to distinguish the suspect from the fillers.
Create a consistent appearance between the suspect and fillers with respect to
any unique or unusual feature (for example, scars, tattoos) used to describe the
perpetrator by artificially adding or concealing that feature.
Summary: The foregoing procedures will result in a photo or live lineup in which
the suspect does not unduly stand out. An identification obtained through a lineup
composed in this manner may have stronger evidentiary value than one obtained
without these procedures.
Presenting In presenting a live lineup, the investigator should:
■
■
■
Instruct the witness that he or she will be asked to view a group of individuals.
Instruct the witness that it is just as important to clear innocent persons of suspicion as to identify guilty parties.
Instruct the witness that individuals present in the lineup may not appear
exactly as they did on the date of the incident, because features such as head
and facial hair are subject to change.
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■
■
■
Instruct the witness that the person who committed the crime may or may not
be present in the group of individuals.
Assure the witness that, regardless of whether or not an identification is made,
the police will continue to investigate the incident.
Instruct the witness that procedure requires the investigator to ask the witness
to state in his or her own words how certain he or she is of any identification.
Summary: Instructions provided to the witness prior to presentation of a lineup will
likely improve the accuracy and reliability of any identification obtained from the
witness and can facilitate the elimination of innocent parties from the investigation.
FOR SHOWUPS
When conducting a showup, the investigator should:
■
■
Determine and document, prior to the showup, a description of the perpetrator.
Consider transporting the witness to the location of the detained suspect to
limit the legal impact of the suspect’s detention.
When multiple witnesses are involved, the investigator should:
■
■
■
■
Separate witnesses and instruct them to avoid discussing details of the incident
with other witnesses.
If a positive identification is obtained from one witness, consider using
other identification procedures (for example, a lineup or photo array) for the
remaining witnesses.
Caution the witness that the person he or she is looking at may or may not be
the perpetrator.
Obtain and document a statement of certainty for both identifications and
nonidentifications.
Summary: The use of a showup can provide investigative information at an early
stage, but the inherent suggestiveness of a showup requires careful use of procedural
safeguards.
FOR PHOTOGRAPHIC IDENTIFICATIONS
In completing a photo lineup, the investigator should:
■
■
■
322
Include only one suspect in each identification procedure.
Select fillers who generally fit the witness’s description of the perpetrator.
When the description of the perpetrator provided by the witness is limited or
inadequate, or when the description of the perpetrator differs significantly from
the appearance of the suspect, fillers should resemble the suspect in significant
features.
If multiple photos of the suspect are reasonably available to the investigator,
select a photo that resembles the suspect’s description or appearance at the time
of the incident.
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■
■
■
■
■
■
■
■
Include a minimum of five fillers (nonsuspects) per identification procedure.
Complete uniformity of features is not required. Avoid using fillers who so
closely resemble the suspect that a person familiar with the suspect might find
it difficult to distinguish the suspect from the fillers.
Create a consistent appearance between the suspect and fillers with respect to
any unique or unusual feature (for example, scars, tattoos) used to describe the
perpetrator by artificially adding or concealing that feature.
Consider placing suspects in different positions in each lineup both across cases
and with multiple witnesses in the same case. Position the suspect randomly in
the lineup.
When showing a new suspect, avoid reusing fillers in lineups shown to the
same witness.
Ensure that no writings or information concerning previous arrest(s) will be
visible to the witness.
View the spread, once completed, to ensure that the suspect does not unduly
stand out.
Preserve the presentation order of the photo lineup. In addition, preserve the
photos themselves in their original condition.
Many law enforcement agencies have shifted from the “old method” to the “new
method” of conducting a lineup. Under the old method, the investigating officer
was allowed to administer the lineup, photographic identification, or showup. This
officer knew the identity of the suspect. In the new method, fillers must resemble
the suspect or person of interest, and an impartial administrator in the department
(someone who does not know the identity of the suspect) presents the lineup. The
new method minimizes bias and unfairness.
O T H E R ME AN S OF I DENT I F YI NG S U SPEC T S
In addition to lineups, showups, and photographic arrays, the police often use other
identification procedures, such as DNA testing, polygraph examinations, Breathalyzer
tests, handwriting and hair sample analysis, and brain fingerprinting. The admissibility of these forms of scientific evidence in court varies. Constitutional rights may also
be involved in each procedure.
DNA TESTING
DNA testing results are admissible as evidence. In this section, we look at the
background of DNA testing, results and some of the legal issues testing has created,
the reliability of testing, the need for a national database, and the future of DNA
testing.
Background A comparatively new but powerful tool in suspect identification and
crime solving is DNA testing, which matches the suspect’s DNA with DNA recovered
from the scene of the crime (such as that found in semen or blood). DNA stands for
deoxyribonucleic acid, which is the chemical that carries a person’s genetic information. Known in some circles as genetic fingerprinting, DNA may be recovered from
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a variety of sources, including semen, blood, hair, skin, sweat, and saliva. An article
in the National Institute of Justice Journal says, “Today’s investigators can solve crimes
using the DNA collected from the perspiration on a rapist’s discarded baseball cap, the
saliva on a stamp of a stalker’s threatening letter, and the skin cells shed on a ligature
of a strangled victim.”15
A publication of the National Institute of Justice, U.S. Department of Justice,
offers this simplified account of how DNA evidence works:
DNA is similar to fingerprint analysis in how matches are determined. When
using either DNA or a fingerprint to identify a suspect, the evidence collected
from the crime scene is compared with the “known” print. If enough of the
identifying features are the same, the DNA or fingerprint is determined to be
a match. If, however, even one feature of the DNA or fingerprint is different,
it is determined not to have come from that suspect.16
United States v. Jakobetz
(1992)
If DNA testing is performed properly, the chances of the method producing a false
match are several hundred thousand to one and sometimes several million to one.17 The
New York Times reports that “DNA can remove much of the guesswork for the police
and prosecutors, and it can reach back to grab those who committed crimes decades
ago or were charged but dodged conviction.”18 The same article stated that the “F.B.I.,
which maintains the national databank of DNA criminal case profiles, says that DNA
has so far [November 2005] helped in the prosecution of 27,806 cases nationwide.”
Although DNA research goes back to the 19th century, DNA testing first gained
prominence in England in the mid-1980s. It quickly caught the fancy of the law
enforcement community and prosecutors in the United States as an infallible means of
suspect identification.19 When first introduced in a U.S. court in 1987, DNA typing
was billed as the “greatest advance in forensics since the discovery of fingerprints.”20
In United States v. Jakobetz, 955 F.2d 786 (1992), a federal court of appeals ruled that
“the district court properly exercised its discretion in admitting the DNA profiling
evidence proffered by the government in this case; we also conclude that courts facing
a similar issue in the future can take judicial notice of the general theories and specific techniques involved in DNA profiling.” In addition to affirming the trial court’s
admission of the evidence, Jakobetz featured a lengthy discussion of the science and
technology of DNA testing and the reasons it is reliable. (See Exhibit 10.1.)
DNA Exonerations and Some Legal Issues DNA testing has been useful
for the police in identifying suspects, and it has also led to the exoneration of some
defendants. The National Institute of Justice, upon orders of the attorney general,
conducted a study to determine how often DNA had exonerated wrongfully convicted defendants. The report, released in 1996, stated that it identified “28 inmates
for whom DNA analysis was exculpatory.”21 As of April 2008, 216 defendants had
been freed after new DNA evidence showed they did not commit the crime.22 As of
February 2008, the states with the most number of defendants freed by DNA examinations were Texas (30), Illinois (27), New York (23), Florida (10), Louisiana (10),
and Virginia (10).23
Although the admissibility of DNA testing results as evidence is settled, other
legal questions have arisen. For example, a three-judge panel of the Fourth U.S.
Circuit Court of Appeals has ruled that convicted felons do not have a constitutional
right to after-conviction DNA testing, although such a test could have proved a
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■ EXHIBIT 10.1 What Every Law Enforcement Officer Should Know about DNA Evidence
Identifying DNA Evidence
Since only a few cells can be sufficient to
obtain useful DNA information to help your
case, the list below identifies some common
items of evidence that you may need to collect, the possible location of the DNA on the
evidence, and the biological source containing the cells. Remember that just because you
cannot see a stain does not mean there are not
enough cells for DNA typing. Further, DNA
does more than just identify the source of the
sample; it can place a known individual at a
crime scene, in a home, or in a room where the
suspect claimed not to have been. It can refute
a claim of self-defense and put a weapon in
the suspect’s hand. It can change a story from
an alibi to one of consent. The more officers
know how to use DNA, the more powerful a
tool it becomes.
Evidence
Possible Location of DNA
on the Evidence
baseball bat or similar weapon
handle, end
sweat, skin, blood, tissue
hat, bandanna, or mask
inside
sweat, hair, dandruff
eyeglasses
nose or ear pieces, lens
sweat, skin
facial tissue, cotton swab
surface area
mucus, blood, sweat, semen, earwax
dirty laundry
surface area
blood, sweat, semen
toothpick
tips
saliva
used cigarette
cigarette butt
saliva
stamp or envelope
licked area
saliva
tape or ligature
inside/outside surface
skin, sweat
bottle, can, or glass
sides, mouthpiece
saliva, sweat
used condom
inside/outside surface
semen, vaginal or rectal cells
blanket, pillow, sheet
surface area
sweat, hair, semen, urine, saliva
“through and through” bullet
outside surface
blood, tissue
bite mark
person’s skin or clothing
saliva
fingernail, partial fingernail
scrapings
blood, sweat, tissue
Source of DNA
SOURCE “What Every Law Enforcement Officer Should Know about DNA Evidence,” National Institute
of Justice, http://www.ncjrs.org/nij/DNAbro/id.html.
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felon’s innocence.24 At about that same time, the Texas Court of Criminal Appeals
(the highest state court for criminal cases) ruled that a district judge did not have the
authority to order DNA testing for an inmate whose case did not qualify under state
law for state-paid testing.25 A judge in Massachusetts “halted the gathering of blood
samples for DNA profiling from thousands of prison inmates, probationers, and
parolees after several sued the state, arguing that it was an illegal search and seizure
performed without proper safeguards.”26
Problems concerning the admissibility of DNA evidence continue to bother some
courts. It came under heavy scrutiny and challenge during the celebrated O. J. Simpson
criminal trial, a trial that did little to increase public confidence in the reliability of
DNA testing and the way it is administered in some government laboratories. Despite
these problems, DNA testing methods over the past decade have improved tremendously, prompting one former DNA-testing opponent to admit that the remaining
scientific debate is purely academic and that the “DNA wars are over.”27
Unassailable Scientific Reliability Considered by some to be the gold standard of criminal evidence, the consensus is that the scientific foundation of DNA
testing is solid and unassailable. If competently interpreted, the test is reliable and
the results are admissible in court. It is generally accepted that each person’s DNA
is unique except for the DNA of identical twins, and that the chances of similarity
in DNA are infinitesimally small. There is no question that DNA technology
is scientifically reliable. Under existing evidence rules on admissibility (the Frye
doctrine or the Daubert doctrine, both discussed later in this chapter), DNA testing
easily satisfies both standards.
The legal controversy, however, centers around the skill of technicians who
conduct the tests and the validity of their interpretations. The chairman of a National
Academy of Sciences panel looking into DNA testing has recommended that laboratories analyzing DNA should be held to higher standards in the way the tests are
performed and interpreted. Admitting that, when performed properly, DNA testing
can be invaluable in solving crimes, the panel also called for adherence to very strict
standards to ensure that the “technique is performed properly in crime laboratories
and that its results are accurate.” It further urged that scientists set the standards for
admissibility. Judges and jurors should not be put in a position where, based on complex data, they have to decide whether a laboratory test result is reliable.28
DNA technology has made giant strides over the years. Just a few years ago,
a DNA test required a sizable sample (such as a blood or semen stain) with highquality DNA, and the test took several weeks. Today, as the FBI Law Enforcement
Bulletin states, “FBI scientists can type DNA from the back of a postage stamp, the
shaft of a hair, and the end of a cigarette in a matter of days.”29 DNA testing results
constitute convincing evidence, but jurors are nonetheless free to disregard it, as
they are any type of evidence. What DNA does is establish that the odds of a false
match are astronomically high; what it cannot do, however, is “positively link a
specific person with a particular evidence stain.”30 Stated differently, the evidence of
guilt in the possession of the police is overwhelming, but to whom does it belong?
A National DNA Database The federal government has opened a national
DNA database aimed at significantly reducing the number of rapes and other crimes
by identifying and catching repeat offenders earlier. As one source describes it, the
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“FBI’s Combined DNA Index System (CODIS) is a national database into which lawenforcement officials around the country can upload DNA information about criminals.” It adds that “states participating in the program (almost all have joined) can draw
from the common DNA basket when investigating unsolved crimes. So far, more than
1.2 million profiles have been registered.”31 Although CODIS has critics worried about
possible violations of civil liberties, one big plus going for it is that it has already cleared
numerous innocent convicts in the United States through DNA testing.
Some states have expanded their state DNA database. Under a law passed in
the state of New York, “Anyone convicted of a long list of felonies will have a DNA
profile entered into a state database for use in solving crimes and aiding prosecutions.
The law permits DNA to be collected either from a blood sample or by taking cells
from the inside of the mouth with a cotton swab.” New York already “collects fingerprints, and has begun taking blood samples from people convicted of sex crimes and
a few other violent offenses.”32
As of 2006, all 50 states and the FBI had laws or other forms of authorization
allowing the collection of DNA samples from convicted offenders. These samples
form profiles that are compared against available DNA profiles of biological evidence. The DNA databases include information on the range of included offenses
and on some characteristics of offenders, such as whether they are adults or juveniles.
The data collected are extensive and a major help in solving crimes, but their use is
controlled and limited. For example, criminal penalties are imposed for such acts as
tampering with the samples or records, the improper entry of DNA samples into the
database, improper access and use, and improper disclosure of DNA information.33
The constitutionality of forensic DNA databanks has been challenged in state
and federal courts based on the Fourth Amendment prohibition against unreasonable searches and seizures. The U.S. Supreme Court has yet to rule on this issue,
but a review of cases reveals most U.S. Courts of Appeals and state courts have held
DNA databanks constitutional against Fourth Amendment challenges. Chances are
that the constitutionality of such databanks will be upheld if a relevant case ever gets
to the United States Supreme Court, because of the state interest involved in freeing
innocent defendants and convicting those who commit offenses. See Exhibit 10.2 for
a list of what DNA technology did for law enforcement in March 2008.
The Future of DNA Testing DNA testing continues to be a welcome bonanza
in law enforcement and will continue to be an effective tool in the war on crime.
It has come a long way since the mid-1980s, when it first came to the attention
of the police. The federal government, the states, and local agencies are all spending a lot of money to improve their DNA-testing capability. Those expenditures
will continue to grow as both prosecution and defense become more aware of how
DNA is a potent tool for establishing guilt or innocence. It is a win-win situation
in the search for justice. A publication by the National Institute of Justice, U.S.
Department of Justices, summarizes current efforts to improve DNA technology in
the fight against crime:34
■
“The development of ‘DNA chip technology’ that uses nanotechnology to improve
both speed and resolution of DNA evidence analysis. This technology will reduce
analysis time from several hours to several minutes and provide cost-effective miniaturized components.”
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■ EXHIBIT 10.2 What DNA Technology Did for Law Enforcement in One Month
The March 2008 DNA Resource Report is
listed below.
■
■
LAW ENFORCEMENT: Investigations and
prosecutions aided by DNA evidence include:
■ Arizona – a cold hit led to sentencing in a sex
assault (match with California database).
■ California – DNA identified serial bank
robber (collected from motorcycle helmet).
A cold hit solved a sexual assault (on database
for assault).
■ Florida – Cold hits identified a rapist (on
database for driving without a license) and a
murderer (on Georgia database).
■ Hawaii – DNA linked a man to Japanese
exchange student murder.
■ Illinois – DNA confirmed suspect in 1981
murder and solved a murder (collected from
glove).
■ Indiana – A cold hit solved 1989 strangulation
(on Florida database).
■ Maryland – Cold hits identified a murderer (on
database for murder) and solved a 1985 murder
(on database for rape).
■ Massachusetts – A cold hit led to sentencing in
rape of young boy (on database for rape).
■ Missouri – Cold hits led to sentencing in a
rape and cutting, solved a 1992 sexual assault
(on database for robbery), and led to three life
sentences for rape (on database for rape).
■
■
■
■
■
328
■
■
■
■
■
■
■
■
Nebraska – DNA led to arrest in 1977 rape and
murder.
New York – DNA solves 1974 murder (collected
from sidewalk spit). Cold hits identified suspects
in a sexual assault (on database for rape) and
a 1983 rape and murder (on database for
manslaughter).
Oklahoma – A cold hit led to rape charges (on
database for robbery and drug possession).
Pennsylvania – A cold hit identified potential
killer in 1978 rape and homicide (on Virginia
database for rape and malicious wounding).
Tennessee – DNA solves 1975 rape and murder
of student.
Texas – A cold hit linked a man to a third
murder (on database for murder).
Vermont – A cold hit led to sentencing in 1991
rape and murder.
Virginia – DNA exonerated teenager of sexual
assault. A cold hit led to charges in 1993
rape.
Washington – DNA led to 41-year sentence for
murder (collected from hair & cigarette butt).
Wisconsin – A cold hit identified rapist (on
Illinois database).
SOURCE DNA RESOURCE REPORT submitted by the Gordon
Thomas Honeywell Governmental Affairs to the Applied Biosystems.
The information in the report does not necessarily reflect the
viewpoints of Applied Biosystems or Gordon Thomas Honeywell
Governmental Affairs.
“The development of more robust methods to enable more crime labs to
have greater success in the analysis of degraded, old, or compromised items of
biological evidence.”
“Advanced applications of various DNA analysis methods, such as Short
Tandem Repeats (STRs), Single Nucleotide Polymorphisms (SNPs), mitochondrial DNA analysis (mtDNA), and Y-chromosome DNA analysis.”
“The use of animal, plant, and microbial DNA to provide leads that may link
DNA found on or near human perpetrators or victims to the actual perpetrator
of the crime.”
“Technologies that will enable DNA identification of vast numbers of samples
occasioned by a mass disaster or mass fatality incident.”
“Technologies that permit better separation of minute traces of male sexual
assailant DNA from female victims.”
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DNA testing is doubtless an effective instrument in the search for justice, both
for the state and for the wrongfully accused or convicted. Its potential for crime
solving is still unfolding, but its effects are already dramatic. As one expert notes,
“The day is coming when, conceivably, a criminal would have to wrap himself in a
plastic body bag to avoid leaving some trace of his DNA at a scene.”35 Future years
will see the effectiveness of DNA testing enhanced and its use become more common.
Those changes bode well for the police and defendants in their common quest for
evidence that truly serves the ends of justice.
POLYGRAPH EXAMINATIONS
Frye v. United States
(D.C. Cir. 1923)
In contrast to the universal admissibility of DNA evidence, most courts refuse to
admit the results of polygraph (lie detector) tests in either civil or criminal proceedings. The only exception is if admissibility is agreed to by both parties. The reliability
of polygraphs is questionable, particularly when the test is administered by an unqualified operator. In the words of one observer, “Polygraphy is very different from other
scientific evidence. It is in essence the opinion of the polygrapher. The underlying
scientific basis for polygraphy has always been the subject of heated controversy.”36
Despite progress in technology, most courts still consider it “junk science.”37
Aside from the problem of unqualified operators, many scholars feel that people
who are adept at deception or who have convinced themselves that they are telling the truth can beat the polygraph. After interviewing polygraph experts from the
CIA, FBI, and other agencies, a committee of the National Academy of Sciences has
concluded that “it is possible to fool a lie detector, especially if the subject is being
screened for general criminal or spy activity and not for some specific act.”38 It then
added that “polygraphs cannot be relied on for mass screening of federal employees,
because they can falsely suggest an honest employee is lying and can be fooled by
someone who is trained to do so.”
Polygraph results fail to conform to the Frye doctrine and are therefore inadmissible as evidence in court. This doctrine, enunciated in Frye v. United States, 293 F.
1013 (D.C. Cir. 1923), states that, before the results of scientific tests will be admissible as evidence in a trial, the procedures used must be sufficiently established to have
gained general acceptance in the particular field to which they belong.39 Although
some states, by case law or statute, have abandoned the Frye doctrine in favor of more
liberal rules, it is still the test used in most states.
By contrast, the Court has held that in federal cases, the Frye doctrine has been replaced
by the adoption of the Federal Rules of Evidence, Rule 702, which provides, in part:
A. Witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if:
1. the testimony is based upon sufficient facts or data,
2. the testimony is the product of reliable principles and methods, and
3. the witness has applied the principles and methods reliably to the facts
of the case.
Daubert v. Merrell Dow
Pharmaceuticals, Inc.
(1993)
These rules embody the Daubert doctrine, which allows the admission in court of
expert testimony pertaining to “scientific, technical, or other specialized knowledge”
that will “assist the trier of fact to understand the evidence or to determine a fact in issue”
(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]). It is a clearly a
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United States v. Scheffer
(1998)
more liberal standard than the Frye test. In federal courts, the admissibility of polygraph
results is now left to the discretion of the trial court judge. This is not true in most state
courts, where strict rules prohibit the admission into evidence of polygraph results.
Moreover, some states by law prohibit the polygraph examination of a complainant by
the police for any complaint.40
In United States v. Scheffer, 523 U.S. 303 (1998), the Court held that a prohibition against the admissibility in court of polygraph evidence in favor of a defendant
does not violate his or her constitutional right to present a defense. In that case, the
results of a polygraph examination of an airman indicated that there was no deception in his denial that he used drugs. He sought to introduce that evidence to help
exonerate himself, but military rules of evidence prohibit the admission of polygraph evidence in court-martial proceedings. Convicted of using drugs, the airman
appealed, claiming that excluding the exonerating polygraph evidence violated his
constitutional right to present a defense.
The Court disagreed, holding that there was no violation of Scheffer’s constitutional right. Significantly, the Court assessed the state of polygraph evidence reliability
as follows: To this day, the scientific community remains extremely polarized about
the reliability of polygraph techniques. Some studies have concluded that polygraph
tests overall are accurate and reliable. Others have found that polygraph tests assess
truthfulness significantly less accurately—that scientific field studies suggest the accuracy rate of the “control question technique” polygraph is “little better than could be
obtained by the toss of a coin,” that is, 50 percent. This lack of scientific consensus
is reflected in the disagreement among state and federal courts concerning both the
admissibility and reliability of polygraph evidence.
The Office of Technology Assessment has stated that “there is at present only limited scientific evidence for establishing the validity of polygraph testing.” It also stated
that its review of 24 relevant studies meeting minimal acceptable scientific criteria
found that correct detections ranged from about 35 to 100 percent.41 The mathematical chance of misidentification is highest when the polygraph is used for screening
purposes. In the words of one writer: “Departmental policy should recognize that
[the] polygraph is not a perfect investigative process and that polygraph results, both
examiner opinions following chart evaluation and [even] confessions and admissions
obtained from examinees, are subject to error. Therefore, results should be considered
in the context of a complete investigation. They should not be relied upon to the exclusion of other evidence or used as the sole means of resolving questions of verity.”42
Even if reliability were to increase in the near future, polygraph tests might
still find limited use in criminal proceedings because of objections based on selfincrimination. It can be argued, with some justification, that forcing a person to
take a polygraph examination and using the results against the person would violate
the right to protection against compulsory self-incrimination because the nature of
the examination is testimonial or communicative instead of real or physical. Issues
pertaining to the right to counsel and due process might also arise, but chances of
their being upheld in court probably would be minimal.
BREATHALYZER™ TESTS
All states and the District of Columbia have laws against drunk driving that make
it a crime to drive with a blood alcohol concentration (BAC) at a prohibited level of
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0.08 percent or above. One publication describes how Breathalyzer test results are
used in criminal prosecutions:
The breath alcohol reading is used in criminal prosecutions in two ways.
Unless the suspect refuses to submit to chemical testing, he will be charged
with a violation of the illegal per se law: that is, it is a misdemeanor throughout
the United States to drive a vehicle with a BAC of .08% or higher. . . . While
BAC tests are not necessary to prove a defendant was under the influence,
laws in most states require the jury to presume that he was under the influence
if his BAC was over .08% when driving. This is a rebuttable presumption,
however [meaning it can be overcome by evidence to the contrary]: the jury
can disregard the test if they find it unreliable or if other evidence establishes
a reasonable doubt.43
There are various consequences for drunk-driving violations, including incarceration, forfeiture of vehicles that are driven while the driver is impaired by alcohol use,
and license suspension. Forty-three states and Washington, D.C., also have laws prohibiting the possession by drivers or passengers of open containers of alcohol in the
passenger compartment of a motor vehicle.44 Most jurisdictions suspend the driver’s
license if the suspect refuses to submit to a Breathalyzer test.
The results of Breathalyzer tests have been challenged based on scientific inaccuracy caused by “improperly calibrated equipment or inadequately trained officers.”45
They have also been challenged based on “the circumstances of the particular testing
at issue, including the skill and experience of the tester and the quality of the particular equipment used.”46 Some states have strict rules and procedures governing the use
and administration of Breathalyzer tests, and adherence to these prescribed rules and
A COMPARISON OF THE FRYE AND THE DAUBERT DOCTRINES
HIGH
L I G H T FOR ADMISSIBILITY IN COURT OF EXPERT SCIENTIFIC TESTIMONY
Similarities
Both doctrines are based on court rulings. The
Frye doctrine was laid out by a federal Court of
Appeals in 1923; the Daubert doctrine was enun-
ciated by the U.S. Supreme Court in a federal case
in 1993. Both have since been enacted into law
for use in state (Frye) or federal (Daubert) courts.
Differences
Frye Doctrine
Daubert Doctrine
Allows the admission in court of expert scientific
testimony if the procedures used are sufficiently
established to have gained acceptance in the particular field to which they belong
Allows the admission in court of expert scientific
testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue
Focus of the standard is acceptance by peers in
that field
Focus of the standard is whether it will help the
judge or jury determine and understand the facts
in the case
A strict standard for admission of scientific evidence in court
A liberal standard for admission of scientific evidence in court
Used in most state courts
Used in federal courts and some state courts
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procedures is mandatory. In one case, the Supreme Court of the state of Ohio ruled
that “tests of breath, blood or urine for alcohol content must closely comply with
state regulations designed to minimize errors.”47
In sum, the reliability of Breathalyzer tests has long been recognized in courts,
but legal issues persist about the fairness of their administration and adherence to
procedures prescribed by state law.
HANDWRITING SAMPLES
United States v. Mara
(1973)
Courts have consistently ruled that obtaining handwriting samples for use in criminal
prosecutions does not violate a suspect’s right against self-incrimination under the
Fifth Amendment. In Gilbert v. California, 388 U.S. 263 (1967) (discussed earlier
in this chapter), the Court held that the admission of a handwriting sample did not
violate the Fifth Amendment. In that case, the Court cited an earlier Court ruling in
Schmerber v. California, 284 U.S. 757 (1966), which held that “the Fifth Amendment
offers no protection against compulsion to submit to fingerprinting, photographing,
or measurements, to write or to speak for identification, to appear in court, to stand,
to assume a stance, or to make a particular gesture.” This is because the right against
self-incrimination prohibits the admission of testimonial evidence but does not
prohibit the incriminatory use of physical evidence. In a later case, United States v.
Mara, 410 U.S. 19 (1973), the Court declared: “Handwriting, like speech, is repeatedly shown to the public and there is no more expectation of privacy in the physical
characteristics of a person’s script than there is in the tone of his voice.”
In sum, obtaining a handwriting sample from a suspect is constitutional because
handwriting is considered public. Consent for obtaining it is advisable but is not a
requirement for its admissibility as evidence in court.
HAIR SAMPLES
Hair samples are used with more frequency in criminal prosecutions to prove guilt.
One advantage of using hair samples is that it keeps the information (such as drug
use) for a long period of time. Court cases have arisen questioning the constitutionality of this use. In Coddington v. Evanko (2005), the U.S. Court of Appeals for the
Third Circuit held that law enforcement officers may shave large amounts of hair
from a suspect’s head, neck, and shoulders, without a warrant, probable cause, or any
basis for suspecting that the hair would provide evidence of crime.”48
In Coddington, the Pennsylvania state trooper’s hair was cut by his superiors
because they had received confidential information of Coddington’s cocaine use.
They cut the hair from Coddington’s “head, neck, and a small section in the area of
his left shoulder blade.” Additional hair was taken from Coddington while he was in
the home of a retired state police trooper by the retired trooper’s wife, a retired beautician. Test results from the hair samples did not show any evidence of cocaine use or
use of any other illegal drugs. Coddington sued his superiors, claiming a violation of
his constitutional rights against unreasonable searches and seizures and his right to
privacy. His lawsuit was dismissed.
He appealed to the federal Third Circuit Court of Appeals, which upheld the
dismissal, saying that “the fact that Coddington had very short hair on his head,
requiring the police officers and the beautician to shave some of his hair to the skin
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in order to obtain a sufficient quantity for the drug test, does not alter the fact that
the only hair that was taken was above the body surface and on public display, and
that hair was taken in [a] proper manner.” This ruling followed a 1982 decision from
the same court that held that “taking hair samples from visible parts of a suspect’s
body does not invade any reasonable expectation of privacy,” and therefore does not
amount to a Fourth Amendment search.49
Although held by courts as valid, one source recommends that “sample collection should be performed by a responsible authority respecting the legal, ethical and
human rights of the person to be tested for drugs of abuse. Hair samples should
be obtained in a non–drug-contaminated environment by an appropriately trained
individual, not necessarily a physician. A sufficient amount of sample should be
collected so that a repeat analysis or a confirmation analysis by another laboratory
can be performed should it be needed.”50
BRAIN FINGERPRINTING
Brain fingerprinting is a new and controversial tool in solving crimes. The technique was invented by Lawrence Farwell, a Seattle-born neuroscientist trained at the
University of Illinois. It is characterized as “a real-time psycho-physiological assessment of a subject’s response to stimuli in the form of words or pictures presented on
a computer monitor. As a forensic method, the test assesses the subject’s knowledge
of a crime scene or of the instrumentalities or fruits of a crime, and it can also be used
to assess knowledge of the particulars of an alibi scene or sequence of events.”51
Although it does not claim to prove the suspect’s guilt or innocence, brain fingerprinting supposedly provides “extremely strong scientific evidence that the record of
the time of the crime stored in the suspect’s brain does or does not contain the salient
facts about the crime, and does or does not contain the salient facts about the alibi.”52
It has generated national attention for possible use in crime detection, such as whether
a person has been trained as a terrorist and other effects on a person’s memory. At least
one state court has ruled that brain fingerprinting results are admissible in court. But a
recent study by J. Rosenfeld of Northwestern University suggests that “in the presence
of learned countermeasures, the wider class of P300-based tests, which includes the
brain fingerprinting technique[,] may give results close to those obtained by chance.”53
In sum, this form of evidence is still new and its admissibility will continue to be
tested in court based on the Frye or the Daubert standard.
SUMMARY
Lineups
■
■
The definition of lineups is as follows: a police identification procedure in which the suspect in a crime is
exhibited, along with others with similar physical characteristics, before the victim or witness to determine if
the suspect committed the offense.
■
The right to counsel applies after a formal charge has
been filed but not before.
The role of a lawyer during a lineup is to make sure the
procedure is fair, but the lawyer must not be allowed to
control the proceedings.
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The right to due process applies and is violated if the
identification procedure is impermissibly suggestive.
The right to protection against unreasonable searches
and seizures does not apply.
The right to protection against self-incrimination does
not apply, because the self-incrimination involved is
physical, not testimonial.
■
■
■
Showups
The definition of showups is as follows: one-to-one
confrontation between a suspect and a witness to a
crime.
The right to counsel applies after a formal charge has
been filed but not before.
The right to due process applies and is violated if the
identification procedure is impermissibly suggestive.
The right to protection against unreasonable searches
and seizures does not apply.
The right to protection against self-incrimination does
not apply, because the self-incrimination involved is
physical, not testimonial.
■
■
■
■
■
■
■
■
■
■
photographs of possible suspects in a one-on-one
situation.
The right to counsel does not apply.
The right to due process applies and is violated if the
identification procedure is impermissibly suggestive.
The right to protection against unreasonable searches and
seizures does not apply.
The right to protection against self-incrimination does
not apply, because the self-incrimination involved is
physical, not testimonial.
Other means of pretrial identification and their admissibility in court include the following:
■
DNA testing—results admissible
■
Polygraph examination—results not admissible
■
Breathalyzer tests—results admissible
■
■
■
Handwriting samples—results admissible
Hair samples—results admissible
Brain fingerprinting—too early to tell
Photographic Identifications
The definition of photographic identifications is as follows: a process in which a victim or witness is shown
■
REVIEW QUESTIONS
1. What four constitutional rights are likely to be
invoked by suspects during the pretrial identification
stage? Briefly discuss how each applies to lineups,
showups, and photographic displays.
2. “A suspect is entitled to a lawyer during a police
lineup.” Is this statement true or false? Explain your
answer.
3. “A suspect’s right to protection against self-incrimination
is violated in a police lineup.” Is this statement true or
false? Justify your answer.
4. What can the police do if a suspect refuses to appear
in a lineup?
5. “A suspect is entitled to counsel during a lineup.” Is
this statement true or false? Discuss your answer.
6. Discuss what is wrong with eyewitness identification.
7. What is DNA testing? Why are DNA test results
admissible as evidence in court?
334
8. Identify and discuss some legal problems associated
with DNA testing.
9. Distinguish between the Frye and the Daubert doctrines as tests of the admissibility in court of scientific
evidence. If you were a defense lawyer, which test
would you want the trial court to use, and why? If you
were the prosecutor, would your answer be the same?
Explain.
10. Discuss why the results of polygraph examinations are
not admissible in most courts.
11. Are the results of Breathalyzer tests admissible in
court? Briefly summarize the rules in various states on
drunk driving.
12. What is brain fingerprinting? Are brain fingerprinting
results admissible in court? Why or why not?
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TEST YOUR UNDERSTANDING
1. Suspect X was arrested by the police in downtown San
Francisco. He was charged with robbery. He asked for
a lawyer and was given a public defender. A week later,
X was made to appear in a police lineup. He refused,
saying that he would do so only if his lawyer was
present during the lineup. He further objected to the
lineup on the grounds that it would violate his constitutional right to due process and protection against
self-incrimination and that it was also a violation of
his Fourth Amendment right against unreasonable
searches and seizures. You are the judge in the case.
Will you uphold or reject X’s allegations? Analyze each
allegation and give reasons for your decision.
2. Assume you are a suspect and are made to appear in
a police lineup. You are suspected of a sexual assault
allegedly committed by “a Hispanic who was about
5 feet 8, wore jeans, and spoke with an accent.”
You are Hispanic, about 5 feet 10, and one of three
Hispanics of similar height in the lineup. All three of
you speak with an accent; all three of you are wearing
jeans. You are identified by the victim after you were
made to repeat the statement “I will kill you if you
shout.” Were your constitutional rights violated, and
if so, what specific right(s)? Support your answer.
3. Assume you are a lawyer who has a client against
whom a charge for rape has been filed. You are
later informed that the police have the DNA results
of some epithelial (skin) cells found on the victim’s clothes, and this evidence matches your client’s
DNA, which was obtained—against his strenuous
objections—while he was arrested and held in detention for a few hours in the local jail. The police obtained
your client’s DNA pursuant to state law, which provides that “all persons arrested for any offense must be
subjected to DNA testing.” State all possible arguments
you can use in court to challenge the case against your
client. Given these facts, would you advise your client
to plead guilty? Justify your response.
RECOMMENDED READINGS
Angus J. Dodson. DNA “line-ups” based on a reasonable
suspicion standard. University of Colorado Law
Review 221, 254 (2000).
Michael J. Ligons. Polygraph evidence: Where are we now?
Missouri Law Review 209, 227 (2000).
J. Wall. DNA analysis: Current status in court. Journal
of International Biotechnology Law 1: 130–133
(2004).
Technical Working Group for Eyewitness Evidence.
Eyewitness Evidence: A Guide for Law Enforcement.
National Institute of Justice, U.S. Department of
Justice, NCJ 178240.
“What Every Law Enforcement Officer Should Know
about DNA Evidence.” National Institute of Justice,
U.S. Department of Justice, http://www.ncjrs.gov/
pdffiles1/nij/bc000614.pdf.
NOTES
1. Henry C. Black, Black’s Law Dictionary, 6th ed.,
abridged (St. Paul, MN: West, 1991), p. 641.
2. Lloyd L. Weinreb and James D. Whaley, The Field
Guide to Law Enforcement (Westbury, NY: Foundation
Press, 1999), p. 67.
3. Larry Rissler, “The Role of Defense Counsel at Lineups,
FBI Law Enforcement Bulletin, February 1980, p. 24.
4. Ibid., p. 23.
5. Supra note 2, p. 64.
6. W. LaFave and J. Israel, Criminal Procedure (St. Paul,
MN: West, 1985), p. 325.
7. Supra note 1, p. 962.
8. Wisconsin v. Dubose, 205 WI 126 (No. 2003AP1690-CR
[2005]).
9. Technical Working Group for Eyewitness Evidence,
“Eyewitness Evidence: A Guide for Law Enforcement,”
National Institute of Justice, U.S. Department of
Justice, October 1999, http://www.ncjrs.gov/txtfiles1/
nij/178240.txt.
10. John Turtle, R. C. L. Lindsay, and Gary L. Wells,
“Best Practice Recommendations for Eyewitness
Evidence Procedures: New Ideas for the Oldest Way
to Solve a Case,” Canadian Journal of Police & Security
Services 1(1): March 2003, p. 3.
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11. Supra note 8.
12. Dara McLeod, “Problems with Police Lineups,” Virginia
Lawyers’ Weekly, http://www.vachiefs.org/ vacp/news/200502-8.html.
13. “Police Lineup Methods Often Flawed, Experts Say,”
Miami Herald, August 4, 2005.
14. Available electronically at http://www.ncjrs.gov/
txtfiles1/nij/178240.txt.
15. “DNA Commission Continues to Hear Testimony,”
National Institute of Justice Journal, October 1999, p. 32.
16. “What Every Law Enforcement Officer Should Know
about DNA Evidence,” National Institute of Justice,
U.S. Department of Justice, http://www.ncjrs.gov/
pdffiles1/nij/bc000614.pdf.
17. Houston Chronicle, August 8, 1992, p. A3.
18. “For ’73 Rape Victim, DNA Also Revives Horror,”
New York Times, November 2, 2005, p. A1.
19. “A Trial of High-Tech Detectives,” Time Magazine,
June 5, 1989, p. 63.
20. “Courtroom Genetics,” U.S. News & World Report,
January 27, 1992, pp. 60–61.
21. Christopher H. Asplen, “Forensic DNA Evidence:
National Commission Explores Its Future,” National
Institute of Justice Journal, January 1999, p. 18.
22. The Economist, April 19, 2008, p. 38.
23. USA Today, February 19, 2008, p. 2A.
24. “U.S. Appeals Court Reverses Ruling on DNA
Testing,” Washington Post, January 25, 2002, p. B19.
25. Houston Chronicle, September 12, 2002, p. 31A.
26. New York Times, February 19, 1998, p. 1.
27. U.S. News & World Report, November 7, 1994, p. 14.
28. New York Times, April 15, 1992, p. 1.
29. FBI Law Enforcement Bulletin, February 1998, p. 24.
30. Ibid.
31. “Privacy v. Security, Special Edition: Criminal Justice,”
Time Magazine (1), p. 4.
32. New York Times, August 16, 1999, p. 1.
33. Seth Axelrad, “Survey of State DNA Database Statutes,”
ASLME (American Society of Law, Medicine and
Ethics), www.aslme.org/dna_04/grid/guide.pdf.
34. Supra note 16.
35. Professor Walter F. Rowe, George Washington
University, as quoted in the Houston Chronicle,
September 12, 1999, p. 1.
336
36. U.S. Deputy Solicitor General Michael Dreeben, as
quoted in the Houston Chronicle, November 4, 1997,
p. A9.
37. USA Today, April 6, 1999, p. A11.
38. Houston Chronicle, October 9, 2002, p. 15A.
39. P. Lewis and K. Peoples, The Supreme Court and the
Criminal Process—Cases and Comments (Philadelphia:
Saunders, 1978), p. 496.
40. See, for example, Texas Code of Criminal Procedure,
Article 15.051.
41. Houston Chronicle, November 23, 1985, sec. 3, p. 1.
42. R. Ferguson, “Polygraph Policy for Model Law Enforcement.” FBI Law Enforcement Bulletin, July 1987, p. 7.
43. “Breathalyzer,” Wikipedia entry, http://en.wikipedia.
org/wiki/Breathalyzer.
44. “DWI/DUI Laws of U.S. States,” Alcohol: Problems
and Solutions, http://www2.potsdam.edu/hansondj/
DrivingIssues/1104284869.html.
45. Rudolf E. Renfer, Attorney & Counselor at Law, P.A.,
“Drunk Driving/DUI Legal Information,” http://www.
renferlaw.com/CM/FSDP/PracticeCenter/Criminal-Law/
Drunk-DrivingDUI.asp?focus=faq.
46. Harvatin Law Offices, PC, “Challenging the Reliability
of Breathalyzer Test Results,” http://www.harvatinlaw.
com/lawyer-attorney-1137748.html.
47. “DUI Tests Must Now Be Accurate,” Alcohol: Problems
and Solutions, http://www2.potsdam.edu/hansondj/
InTheNews/DrinkingAndDriving/1070544548.html.
48. Coddington v. Evanko, 112 Fed. Approx. 835 (C.A.
3rd, 2004).
49. Ibid.
50. “Statement of the Society of Hair Testing Concerning
the Examination of Drugs in Human Hair,” http://
www.soht.org/html/Statements.html.
51. “Brain Fingerprinting Testing in the Case of Harrington v. State,” http://www.brainwavescience.com/
LegalIssuesin-Admissibility.php.
52. “Brain Fingerprinting Testing Ruled Admissible in
Court,” http://www.brainwavescience.com/Ruled%20
Admissable.php.
53. “Brain Fingerprinting,” Wikipedia entry, http://en.
wikipedia.org/wiki/Brain_ fingerprinting.
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