ONALASKA POLICE DEPARTMENT POLICY ISSUE DATE: 10-28-2005 TITLE: Eyewitness Identification LAST UPDATE: 10-28-05 SECTION: Operations TEXT NAME: Eyewitness POLICY SOURCE: Chief of Police TOTAL PAGES: 7 AUTHOR: Investigator John Walker SPECIAL INSTRUCTIONS: I. Purpose The purpose of this policy is to establish guidelines for the use of eyewitness identification procedures involving photo arrays, live lineups, showups, and facial composites. Additionally its purpose is to reduce the risk of wrongful conviction of innocent persons while increasing the probability of convicting the guilty persons. II. Policy Eyewitness identification has always been a powerful tool for investigating and prosecuting criminal cases. Eyewitness evidence can be the most important and convincing evidence in a case. Research and nationwide experience suggest that eyewitness evidence can be fragile and that eyewitnesses can be mistaken. Eyewitnesses can make identification errors, but those errors may be difficult to detect because the witnesses are sincere and have no motive to lie. When wrong, they usually are not being deceitful but are simply mistaken. To reduce the risk of wrongful conviction and aid in the detection and apprehension of the guilty, officers should adhere to procedures set forth here in order to maximize the reliability of identifications, minimize unjust accusations of innocent persons and to establish evidence that is reliable and conforms to established legal procedure. III. Definitions A. Photo Array: The sequential showing of multiple photographs to an eyewitness for the purpose of obtaining an identification. B. Live Lineup: The presentation of a number of individuals, including a suspect, sequentially before an eyewitness. C. Showup: The presentation of one suspect to an eyewitness within a short time following commission of a crime. Last Updated: 8/29/2011 Eyewitness Identification Policy Page 1
IV. Procedures A. Photo Arrays and Live Lineups General Considerations: 1. Choose non-suspect fillers that fit the witness s description and that minimize any suggestiveness that might point toward a suspect. 2. Use double blind procedures in which the administrator is not in a position to unintentionally influence the witness s selection. 3. Specifically instruct eyewitnesses that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect. 4. Present the suspects and fillers sequentially (one at a time) rather than simultaneously (all at once). This encourages absolute judgments of each person presented because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the last subject. 5. Assess eyewitness confidence immediately following an identification. Carefully document a witness s response before any feedback from law enforcement. 6. Avoid multiple identification procedures in which the same witness views the same suspect more than once. B. Showups General Considerations: Some courts have suppressed identification evidence based on the use of showups due to inherent suggestiveness of the practice. Therefore, the use of showups should be secondary in preference to the use of photo arrays or lineups when possible. However, when exigent circumstance requires the use of a showup, the following guidelines should be considered: 1. Document the eyewitness s description carefully prior to the showup. 2. Whenever practical, transport the eyewitness to the location of the suspect. Showups should not be conducted at the police department or other public safety buildings. 3. Specifically instruct the eyewitness that the real perpetrator may or may not be present. 4. Showups should not be conducted with more than one witness present at a time. If identification is conducted with more than one witness, witnesses should not be permitted to communicate before or after any procedures regarding the identification of the suspect. Last Updated: 8/29/2011 Eyewitness Identification Policy Page 2
5. The same suspect should not be presented to the same witness more than once. 6. Showup suspects should not be required to put on clothing worn by the perpetrator. They may be asked to speak words uttered by the perpetrator or to perform other actions of the perpetrator. 7. Words or conduct of any type by officers that may suggest to the witness that the individual is or may be the perpetrator should be scrupulously avoided. 8. Assess eyewitness confidence immediately following an identification. C. Facial Composite General Considerations: Inaccurate information from outside an eyewitness s memory can taint development of a composite. As with photo arrays, live lineups, and showups, composites can be compromised if the witness s description relies on information learned from external sources after the crime or if the person administering the procedure either unintentionally supplies the witness with information or unintentionally incorporates outside knowledge of the case into the production of the composite. For this reason, when a composite is used, double-blind concepts and principles in which both the witness and the person making the composite are unaware of external information about the case may be helpful. It may not be feasible to conduct a completely doubleblind procedure for a variety of reasons, in which case witnesses should be told to rely on their independent recollection of the event not information learned from other sources and administrators must be mindful of any natural tendency to incorporate prior knowledge into the process. D. Composing the Photo Lineup 1. In order to ensure that inadvertent verbal cues or body language do not impact on a witness, the person conducting the photo lineup should use the folder system or lineup administrator. 2. When possible, photo lineup identification procedures should be conducted sequentially, showing one photo at a time to the witness rather than simultaneously. Children aged 10 and under should not be shown a sequential photo lineup but can be shown a photo array. 3. In composing a photo lineup, the person administering the identification procedure should ensure that the lineup is comprised in such a manner that the suspect does not unduly Last Updated: 8/29/2011 Eyewitness Identification Policy Page 3
stand out. However, complete uniformity of features is not required. E. Sequential Photo Lineup Procedure: 1. Include only one suspect in each identification procedure. 2. Select fillers (non-suspects) who generally fit the witness s description of the perpetrator when there is a limited or inadequate description of the perpetrator provided by the witness, or when the description of the perpetrator differs significantly from the appearance of the suspects. Fillers should resemble the suspect in significant features. 3. Select a photo that resembles the suspect s description or appearance at the time of the incident, if multiple photos of the suspect are reasonably available to the investigator. 4. Include five fillers (non-suspects) per identification procedure. 5. Avoid reusing fillers in lineups shown to the same witness when showing a new suspect. 6. Ensure that no writings or information concerning previous arrest(s) will be visible to the witness. 7. View the array, once completed, to ensure that the suspect does not unduly stand out. 8. Preserve the presentation order of the photo lineup. The photos themselves should be preserved in their original condition. 9. Read the Witness Photo Lineup Instructions to the witness. (See Appendix A). 10. Confirm that the witness understands the nature of the sequential procedure. 11. Present each photo to the witness separately, in a previously determined order, removing those previously shown. 12. Avoid saying anything to the witness that may influence the witness s selection. 13. Document in writing the lineup procedure, including: a. Identification information and source of all photos used. b. Names of all persons present at the photo lineup. c. Date and time of the identification procedure. 14. When conducting an identification procedure, the lineup administrator or investigator shall preserve the outcome of the procedure by documenting any identification or no identification results obtained from the witness. Preparing a complete and accurate record of the outcome of the Last Updated: 8/29/2011 Eyewitness Identification Policy Page 4
identification procedure is crucial. This record can be a critical document in the investigation and any subsequent court proceedings. When conducting an identification procedure, the lineup administrator or investigator should: a. Record both identification and no identification results in writing, including the witness s own words. b. Ensure that the photo results are signed and dated by the witness on the bottom or back of the photo. c. Ensure that no materials indicating previous identification results are visible to the witness. d. Ensure that the witness does not write on or mark any materials that will be used in other identification procedures. 1. The witness, if requested, may view one or more of the photos again after the sequential photo array procedure has been completed. The District Attorney s Office advises this departure from protocol should be allowed and must be thoroughly documented. This should occur only if the witness requests it after the procedure is completed and should never be at the suggestion of the person administering the photo array. F. Folder System 1. There should be five filler photographs and one suspect photograph. 2. Place one filler photograph in folder number 1. 3. Have someone out of your sight place the remaining four filler photographs and the suspect photograph in folder 2 through 6. or You place the four filler photographs and the suspect photograph into the folders and shuffle the folders so you do not know which folder the suspect is in, and then number the folders 2 through 6. 4. Folder numbered 7 and 8 are empty and are used so the witness does not know when they have sent the last photo. 5. Read the Witness Photo Lineup Instructions to the witness. (See Appendix A). 6. Hand the first folder to the witness for viewing, making sure you cannot see who is in the photo and inform the witness not to show you the photo. When the witness is done viewing the photo, he/she will hand it back to the investigator. The second folder will then be handed to the witness and the above process will be repeated through folder number 6. Last Updated: 8/29/2011 Eyewitness Identification Policy Page 5
7. Photos will be placed into evidence. 8. Sign the Witness Photo Lineup Instructions form and attach to report. (See Appendix A). G. Using a Lineup Administrator 1. There should be five filler photographs and one suspect photograph. (Case Detective) 2. Give the lineup administrator one filler photograph to be used as the first photo shown. (Case Detective) 3. Give the lineup administrator the suspect photo and remaining four filler photos and have him/her mix-up the photos and number them 2 to 6. Do not tell the administrator which photo is the suspect. (Case Detective and Administrator) 4. Photos 7 and 8 are blank and are not shown to the witness but are used so the witness does not know when they are viewing the last photo. (Administrator) 5. Read the Witness Photo Lineup Instructions to the witness. (Administrator) (See Appendix A.) 6. Hand the first photograph to the witness for viewing. When the witness is done viewing the photos, he/she will hand you the photo back. The second photo will then be handed to the witness and the above process will be repeated through photo number 6. If the case detective is present during the lineup, they need to be in a position that they cannot see who is in the photo. The witness should be informed not to show any of the photos to the case detective. (Administrator) 7. Photos will be placed into evidence. (Case Detective) 8. Sign the Witness Photo Lineup Instructions form and attach to report. (See Appendix A). Randy A. Williams Chief of Police Date RAW:rdm Last Updated: 8/29/2011 Eyewitness Identification Policy Page 6
APPENDIX A WITNESS PHOTO LINEUP INSTRUCTIONS Read to Witness: In a moment I am going to show you a group of photographs one at a time, in a random order. I will show you each photograph once, so review each photograph carefully and take as much time as you need before moving to the next one. All photographs will be shown, even if identification is made prior to viewing all the photos. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that facial features such as hairstyles, beards and moustaches may be easily changed. Also, photographs may not always depict the true complexion of a person it may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photos or any other differences in the type or style of the photographs. Please tell me if you recognize anyone in these photographs for whatever reason. Do not tell other witnesses that you have or have not identified anyone. Reporting Officer: Badge # I was read the above and understand the instructions: Witness Date Last Updated: 8/29/2011 Eyewitness Identification Policy Page 7