PROCEDURE NUMBER: 402 EFFECTIVE DATE: November 17, 1992 SUBJECT: SUSPECT IDENTIFICATION 402.1 PURPOSE: To establish a uniform procedure for the conduct of stand-up line-ups, photo array line-ups, and other methods of pretrial identification of suspects. 402.2 OBJECTIVE: To guarantee accuracy and fairness in identifications and to satisfy the requirements of the law governing the rights of suspects prior to and after the initiation of adversarial judicial proceedings. 402.3 DEFINITIONS: 1. Initiation of adversarial judicial proceedings. The point at which an indictment is returned or court proceedings have been instituted. ' 2. Stand-up Line-up - A line-up consisting of six (6) persons to be viewed in person, in a group photograph, or in a video tape by a witness(es)/victim(s) for the purpose of suspect identification. 3. Photo array line-up - A series of individual photographs of persons to be viewed by a witness(es) /victim(s) for the purpose of suspect identification. 4. Show-up - An identification procedure wherein a suspect(s) is viewed by a witness (es) shortly after the crime, at the location where the suspect(s) is detained or where the witness(es is located. 402.4 GENERAL: Missouri has a two (2) step analysis for determining the constitutionality of pre-trial identification procedures. First, the court must determine whether the investigative procedures employed by the Police were impermissibly suggestive; and secondly, if so, whether they were so impermissibly suggestive as to create a very substantial likelihood or irreparable misidentification at trial. 402.5 Rights of the suspect: A. Once a suspect has been lawfully taken into custody, he may be placed in a lineup without his consent. A suspect in custody may not refuse to participate in a lineup and reasonable force may be used to compel his participation. In the event that such force is required, the amount of force used should be noted in the Police report and the suspect should be transported to the hospital for 402 -p.1
examination immediately following the lineup. If the suspect does refuse to appear in a lineup, Officers should consider obtaining a court order requiring his participation in the lineup or use of a photo lineup for identification purposes. B. If sufficient probable cause to arrest the suspect does not exist, the suspect must consent to participation in a lineup. If a suspect not under arrest consents to appear in a lineup, the attached "Voluntary Appearance in Lineup" form will be completed and attached to the Police report. C. When a lineup is to be conducted prior to the initiation of adversarial judicial proceedings, it is not necessary to advise the suspect of his right to counsel. D. When a lineup is conducted after the initiation of adversarial judicial proceedings against the suspect, he must be clearly informed of his right to counsel at the lineup. (1) If the suspect desires his own attorney present, the attorney must be notified. If the notification and presence of the suspect's own attorney would result in prejudicial delay, the public defender shall be notified and requested to attend the lineup. (2) If the suspect desires an attorney present at the lineup, but cannot afford one, the public defender shall be notified and requested to attend the lineup. (3) In cases in which the suspect has requested an attorney present at the lineup, the lineup normally should not be held until either the suspect' s attorney or a public defender is present. If a prejudicial delay results from a request for an attorney, the lineup may proceed without the suspect' s attorney. In cases wherein the lineup is conducted in the absence of the suspect's attorney, the Police report should state specific reasons why the lineup was conducted. Officers should keep in mind that the conduct and validity of the lineup, as well as the rights of the suspect, may become an issue during any subsequent judicial proceedings. ( 4) If the suspect, after being advised of his rights to counsel at a lineup, knowingly and 402 -p.2
intelligently waives his/her right to counsel, the lineup will proceed as soon as possible. In order to establish an "intelligent waiver", it is necessary that the suspect specifically state that he understands his right to have counsel present and that he is willing to proceed without counsel present. If a suspect waives his right to counsel, the attached "Waiver of Counsel at Lineup" form will be completed and attached to the Police report. ( 5) If the suspect' s attorney is present at the lineup, his role is only as an observer once the lineup has begun. The attorney may not question witnesses or participants, or otherwise disturb the lineup in any way. If an attorney persists in disrupting the lineup, he may be removed and the lineup shall proceed without him. Any disruption on the part of the attorney will be recorded in the Police report. a. Suggestions by a suspect's attorney regarding the composition and conduct of the lineup shall be given strong consideration and complied with only if they are reasonable, practical and in accordance with accepted Police practices. Any suggestions or exceptions made by the suspect's attorney should be noted in the Police report, whether or not they are complied with. (6) If the identification or attempted identification takes place during the lineup, as opposed to a post lineup interview, the suspect' s attorney should be allowed to be present. If, conversely, the identification is to be made during the post lineup interview, there is no obligation to allow the participation of the attorney. a. Some court decisions have held that if the defense counsel is denied access to a post lineup interview identification of the suspect, a verbatim recording (video tape or tape recording) of the post lineup interview should be made and furnished to the defense counsel. If no recording of the interview can 402 -p.3
402.6 Conduct and Composition of the Lineup be made available to the defense counsel, the witnesses should be made available immediately following the lineup. b. In light of these decisions, an attempt at an identification should be made at the time of the lineup and in the presence of the defense attorney. c. The State is under no obligation to provide the names and addresses of witnesses to the defense at this stage of the investigation. A. All stand-up lineups should contain at least five (5) persons besides the suspect. 1. All persons who appear in the lineup should resemble each other as nearly as possible in race, sex, age, color of skin, hair color, physical appearance, and dress. a. Clothing worn by participants is of secondary importance compared to other physical factors and may create suggestiveness only when the clothing becomes a focal point of the identification. EXAMPLE: Suspect is the only participant wearing a paint covered shirt previously mentioned by the witness. b. There is no requirement to conceal scars, tattoos, or other individual or unique characteristics from the view of witnesses during the conduct of the lineup. B. All questions asked, statements made, or directions given to any participant in the lineup must be repeated for each of the other participants. EXAMPLE: If a participant is asked to repeat a specific phrase or word to facilitate a voice identification, all participants must be instructed to do the same. 402 -p.4
c. If more than one witness is to view the lineup, each viewing and attempt at identification must be done separately and out of the view and hearing of other witnesses. D. All witnesses must remain separated and be kept from having verbal or visual communication with each other during the lineup and identification process. E. There should be no investigative questioning of any witness while the lineup is being conducted. F. The person conducting the lineup should refrain from making any statement regarding the identity, position, or appearance of the suspect during the lineup and identification process. G. The witness should only be told that a suspect may be in the lineup and only be asked if the witness can identify anyone. 402.7 Recording the Lineup A. A color photograph or.video tape recording shall be taken of the lineup prior to viewing by each witness. B. The name, race, sex and date of birth of each lineup participant shall be recorded, along with their position in the lineup, each time a separate photograph of the lineup is taken. C, When possible and practical, the lineup will be video taped and the tape placed into evidence pending court proceedings. D. If lineup participants are instructed to repeat specific words or phrases, their statements should be tape recorded, preferably in conjunction with a video tape of the entire lineup. If recordings cannot be made, the exact words or statements should be recorded in the Police report. 402.8 Photograph (Photo Array) Lineups A. There is no 6th Amendment right to counsel for the suspect when a photo lineup is conducted. B. Photo lineups, when possible, will consist of a minimum of six (6) photographs, including a photograph of the suspect. C, As in a stand-up lineup, the persons depicted should 402 -p.5
resemble each other as nearly as possible with regard to race, sex, age, skin color, hair color and physical appearance. D. In addition to the physical characteristics of the subjects depicted in the photographs, the formats of the photographs should be as nearly the same as possible. E. Whenever possible, the photo array should consist of six (6) Bridgeton Police Department mug shots. 1. If necessary, polaroid photographs, Department of Revenue Drivers License photographs, other agency mug shots, and "non mug shot" photographs may be used. In these instances, every effort to avoid "suggestiveness" with regard to format, should be made. 2. Photographs may be placed in a "Template" for viewing by witnesses. 3. Photographs shown may intentionally be made dissimilar with regard to format; so as not to be suggestive of a particular subject depicted in the photo array. F. All photographs used shall be numbered from one ( 1) through six ( 6) and should be shown in random order. The name, race, sex, and date of birth of the subject in the photo shall be noted on the back of the photograph. The identity of the subject in the photo and the number of the photograph will be noted in the Police report. 1. EXCEPTION: If only Bridgeton Police Department mug shots are used in the' lineup, the mug shots may be referenced by LID number in lieu of being numbered as one (1) through six (6). G, If an identification is made based on the mug shot lineup, the mug shot identified by the witness(es) is to be signed and dated on the back by the witness. In addition, all mug shots used in the lineup are to be initialed and dated on the back by the Officer conducting the lineup. H. If an identification is made, the complete mug shot lineup will be placed in evidence pending subsequent court action. I. If no identification is made, the photo array may be kept in the case file for investigative purposes and 402 -p.6
subsequent viewing by other witnesses. 402.9 Obtaining "Voluntary" Mug Shots A. Occasionally, it is necessary to request a subject to voluntarily consent to have his photograph taken in order to show his photograph to witnesses. When this situation occurs, the subject must understand that he/she is VOLUNTARILY giving permission to have his photograph taken and must understand that it may be shown in conjunction with an investigation(s). 1. Explain that the photograph may help in eliminating him/her as a suspect in a case. 2. Explain that the "mug shot" format is necessary so that other photographs used from Department mug shot files will have the same format and that his photograph will not be unique. 3. Request that the subject acknowledge that he/ she is being photographed voluntarily by completing the attached "Voluntary Submission of Photographic Evidence" document. a. This document will be completed and maintained in the appropriate investigative file, along with the photographic negative and any prints of the subject. 4. Voluntary mug shots will not be placed in the Department mug shot books. 5. Voluntary mug shots will not be assigned LID numbers. The LID tab inserted in the mug shot camera will bear the DSN of the Officer requesting the voluntary mug shot and after processing will be forwarded, along with the negative, to the requesting Officer. 6. If, using a voluntary mug shot of a subject, that subject is identified as the perpetrator of a crime, the voluntary mug shot will be treated as evidence in the same manner as a normal mug shot and will be placed into evidence. 7. If a voluntary mug shot becomes of evidentiary value, the "Voluntary Submission of Photographic Evidence" form will become a 402 -p.7
402.10 Show Ups permanent part of the case file. a. The absence of said documents during court proceedings may result in the suppression of the identification if allegations of coercion to obtain the photograph are made. 8. Under no circumstances will a photograph in mug shot format, submitted voluntarily, be released for publication or to any non-law enforcement agency without prior approval of the Office of the Chief of Police. A. Under certain circumstances, it witness attempt to identify conducting a lineup. is permissible to have a a suspect(s) without B. If a suspect(s) is apprehended within a maximum of two (2) hours from the time of the incident, he/she may be viewed in person by the witness without a lineup. In this situation, the witness should be conveyed to the location of the apprehension or detention to view the suspect(s). If there is more than one (1) witness, the witnesses should attempt to make the identification independently of each other and should not be allowed to converse or discuss the identification with each other. It is important to remember that if witnesses are allowed to make an identification of a suspect(s) under these circumstances, the Officers must make no suggestions or give any encouragement to witnesses regarding the guilt of the suspect(s) being viewed. Any comments or actions by Officers which could be construed as "impermissibly suggestive" may result in suppression of the identification. c. If a suspect is detained with "reasonable suspicion" and a show up is to be used in an attempt to identify the suspect, the suspect should not be held or detained for longer than twenty (20) minutes. D. Under certain circumstances, the witness may not be able to confront the suspect at the location where he is being detained, due to injury or other circumstances. In these instances, it is permissible to convey the suspect to the scene of the crime or a neutral location for the showup if this can be done within the two (2) hour time frame and within the twenty (20) minute detention time allowed by the courts. 402 -p.8
1. If the suspect is transported to a location other than where he was initially located and detained, or if he is detained longer than twenty (20) minutes, the reasons will be noted in the Police report. EXAMPLE: detention patterns, The location of the is unsafe due to unruly crowds, etc. initial traffic 2. Officers conducting a showup type of identification should exercise good judgment, consider the totality of the circumstances, and should conduct the showup in a manner which is least intrusive to the suspect. E. Under certain circumstances, the showing of a single suspect photograph may be permissible. In the event that a single photograph of the suspect must be shown, the St. Louis County Prosecuting Attorney's Office should be contacted and the reasons for the necessity of the type of identification discussed with that office. 402.11 Identification of Suspects Under Unusual Circumstances A. In the event that a witness is hospitalized and cannot be present at a lineup, the following alternate methods may be suggested. 1. The lineup may be conducted in the absence of the witness(es) and the lineup video taped or photographed, to be shown to the witness(es) at a later time. 2. If the lineup is video taped and shown to the witness(es), a video tape of the witness(es) viewing the lineup should also be made and both tapes entered into evidence. 3. The suspect may be conveyed to the hospital, along with additional lineup participants, and the lineup conducted at the hospital. This method of identification should only be attempted if the witness (es) is in imminent danger of dying, no other means of attempting an identification is possible, and the hospital staff will permit such attempt. B. In the event that the suspect is hospitalized, the witness(es) may be conveyed to the hospital to view the suspect. In this instance, the witness(es) should also be asked to view several other patients having similar 402 -p.9
characteristics. This method of identification will also require the permission of the hospital staff. 402.12 Juvenile Suspect Lineups A. The Juvenile Court of St. Louis County Police Procedures Manual reflects that the lineup must be conducted with the permission of the St. Louis County Juvenile Court and that lineups conducted at the St. Louis County Juvenile Detention Center will be photographed by the detention facility staff. If a photograph of the lineup is needed by the Officer requesting the lineup, additional permission from the Juvenile Court is needed before the Officer may photograph the lineup. B. In light of possible changes in the rules governing juvenile lineups, Officers should consult the Juvenile Court of St. Louis County Police Procedures Manual for updates to paragraph A, or contact the St. Louis County Juvenile Court. 402.13 The Bridgeton Police Department lineup data form attached to this Procedure will be completed and attached to the report on all stand-up lineups. 402 -p.10