Challenging An Eyewitness Identification

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CHALLENGING EYEWITNESS IDENTIFICATION

Jurors place great importance on eyewitness testimony, particularly if the witness has no obvious axe to grind. In reality, however, eyewitness testimony is inherently unreliable, and mistaken identification often results in a wrongful conviction.

In this Information Sheet, we’ll explore two commonly used identification procedures — the photo array and the line-up – to learn how these procedures work and how your defense lawyer can challenge these procedures.

I. IDENTIFICATION PROCEDURES

The Photo Array

With a “photo array,” the witness is asked to identify the perpetrator from a set of photographs. A photo array should include at least six photographs, but sometimes will include up to nine. The photos may be laid out like a line-up or may be displayed using a cardboard cutout, which overlays the photographs and partially hides the differences among them. Typically, the photos in the array show only the faces of the men or women pictured and include no other physical characteristics, such as the individual’s height, weight, body shape, or manner of dress.

The Line-Up

In a “line-up,” the police may have several individuals sit or stand next to each other, while the witness tries to make an identification, usually from the other side of a one-way mirror. The line-up allows the witness to see real people and compare these real people with his memory of the perpetrator’s appearance. The eyewitness can see the height, weight, body language, and dress of each individual; he can see the way they walk and assess their demeanor, e.g., whether they are meek and staring at the floor, or aggressive and glaring at the mirror.

II. CHALLENGES TO IDENTIFICATION PROCEDURES

Constitutional Limits on Identification Procedures

Photo arrays and line-ups must comply with the due process clause of the Constitution. Essentially, this means that the photo array or line-up must be administered fairly. The Supreme Court has determined that an identification procedure violates due process when it is “unnecessarily suggestive” and creates a “substantial risk of misidentification.”

Grounds to Challenge a Photo Array Identification
Depending on the circumstances, numerous factors might make a photo array unnecessarily suggestive and create a substantial risk of misidentification. For example:
• The photo of the suspect is outdated or does not represent how the suspect normally appears (e.g., the suspect usually wears shoulder-length hair and two or three days of facial stubble, but the photo in the array shows a clean-cut individual with no facial hair).
• The photo is so unlike the other photos that the witness cannot help but conclude that the detective is trying to tell him something. In a photo array, the decoy photographs often are mug shots. If the suspect has never been arrested or if no recent mug shot exists, the photo in the array may come be from any number of sources, e.g., a school photo or a vacation photo.
• The same photograph or another photograph of the suspect was included in more than one photo array. The observant witness will consciously note the repetition, while the less observant witness may subconsciously be guided by it.