Faulty eyewitness identifications have been at the root of 75 percent of the wrongful convictions cleared by DNA tests that provided definitive proof of innocence. Even in rape cases, DNA has provided evidence that witnesses can be horribly mistaken. And DNA has bolstered an overwhelming number of research by criminologists and sociologists that cast doubt on eye witness reliability. Yet the courts hold to standards of evidence for eye witness identification that were adopted four decades ago.
Sarah A. Mourer , an assistant professor of clinical legal education at the University of Miami School of Law and former Miami-Dade assistant public defender, published an article in the Duke Journal of Constitutional Law and Public Policy (at 3 Duke J. Const. L. & Pub. Pol'y 49 2008) that explores this glaring vulnerability in American justice:Bobby Joe Leaster never committed a crime in his life. As a child, his worst misbehavior was sneaking off to go fishing when he was supposed to be in church. On September 27, 1970, Bobby Joe was arrested and charged with a murder that he did not commit. Late that afternoon, a man named Levi Whiteside was shot and killed during a holdup at a neighborhood store. Bobby Joe was standing on a nearby street corner on his way to visit his nephew. Bobby Joe was wearing clothes that matched eyewitness descriptions of the man who killed Levi Whiteside. The police detained him and took him to
The prosecutor did have
corroborating evidence against Bobby Joe.
At a grand jury hearing, a witness from the store also identified Bobby
Bobby Joe told police that he was with his girlfriend at the time of the
murder. When the police attempted to
confirm his alibi with Bobby Joe’s girlfriend, she denied it. Subsequently,
exculpatory evidence came to light. A
Courts today continue to allow into evidence suggestive identification testimony similar to that in Bobby Joe’s case. Currently, courts consider the admissibility of identification testimony under a Fourteenth Amendment procedural due process analysis. If a court determines that a pretrial identification was unnecessarily suggestive, it then ascertains whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. A court will find a substantial likelihood of irreparable misidentification only if the identification is found to be unreliable. Therefore, even if the court concludes that a police identification procedure was suggestive, it may be admissible if the court finds that the identification is nevertheless likely to be accurate. A court will balance the suggestiveness of the identification procedure against the likelihood that the identification is correct, resulting in an unprincipled rule of law that turns on the court’s subjective assessment of the defendant’s guilt. As Bobby Joe’s case demonstrates, courts will admit misidentifications, and juries will convict in reliance upon them.
Given these serious drawbacks with the due process approach, this article reexamines police eyewitness identification procedures in the first instance under the Fourth Amendment. It explains why a suggestive lineup may properly be a Fourth Amendment concern. It also explores why such an analysis may be more effective in excluding identification testimony at trial because of the objectives of the Fourth Amendment’s exclusionary rule. Under this rule, all identification testimony resulting from suggestive lineups would be suppressed, whether or not the identification is thought to be accurate. Furthermore, a Fourth Amendment approach to lineups better lends itself to the imposition of clear and consistent guidelines than does the current due process analysis.
Analyzing lineups under the Fourth Amendment may accomplish two goals. First, if courts find it persuasive, it can correct the ways in which the courts have failed and provide the most effective means to protect the innocent from wrongful convictions resulting from misidentifications. Second, even if courts do not find it immediately persuasive, using a Fourth Amendment lens can still provide a useful basis for understanding the shortcomings of the current due process test under the Fourteenth Amendment. This article raises many issues that will require significant dialogue before effective solutions may be reached. The regulations and criteria recommended in this article are suggestions designed in hopes of sparking debate and furthering scholarly discussion.
Section II discusses the problem of misidentifications. Misidentifications are the leading cause of wrongful convictions, and many result from unregulated lineups and identification procedures. Section III presents an overview of human memory function and discusses how suggestion influences memory. Section IV demonstrates why lineups are a significantly unreliable police investigatory procedure and how suggestiveness pervades lineups. The accuracy of an eyewitness identification procedure rests largely on memory, a human function uniquely prone to molding, suggestive influence, and error. Section V reviews the current due process law regarding suggestive identification procedures. Currently, courts permit eyewitness identification testimony resulting from even highly suggestive identification procedures if the court determines that the identification was “reliable.” Courts use a set of factors to decide if an identification is “reliable,” but these do not reliably indicate by themselves that the identification is accurate.
Section VI explains how a claim regarding an unregulated or suggestive lineup is supportable under the Fourth Amendment. This article proposes that an unregulated lineup is an unreasonable seizure under the Fourth Amendment. Although one might initially assume this notion lacks support, a closer look at the case law and intent of the Fourth Amendment will reveal that the unreasonable risk to the individual in a suggestive or unregulated lineup is a Fourth Amendment concern. Indeed, courts have suggested that the reliability of a police investigatory procedure is relevant in terms of the Fourth Amendment. This article proposes that, in addition to the physical intrusion of the seizure, the lack of reliability in eyewitness identification procedures also triggers Fourth Amendment protections.
Section VII recommends two types of procedural safeguards that should be required before courts admit identification testimony. First, there must be reasonable suspicion that the individual has committed the crime for which identification is sought. Section VII places this proposal in the context of the varying standards for different kinds of intrusions under current Fourth Amendment law. Second, nine guidelines should be used to evaluate lineups. This section briefly lays out these guidelines and explains why their use will significantly reduce the likelihood of misidentifications. Section VIII then discusses exceptions to the use of these procedural safeguards.
This article proposes that analyzing eyewitness identification procedures through a Fourth Amendment perspective will help clarify the problems with courts’ current approaches. Such an assessment is a useful starting point to evaluate and highlight the issues surrounding the current standards. Viewing the suggestion involved with eyewitness identification procedures as a Fourth Amendment issue may seem unconventional initially. This article does not intend to provide all of the answers and single-handedly create new standards for lineups under the Fourth Amendment. Rather, this article’s primary goals are to begin a discourse on the impact of the Fourth Amendment on identification procedures and to provide guidance in the area of reform for eyewitness identification procedures generally.
II. Wrongful Convictions
Available numbers regarding exonerations reflect only a small fraction of wrongful convictions and innocent individuals jailed and prosecuted. Many experts estimate that wrongful convictions may amount to as many as five percent of all convictions each year. With the aid of DNA testing, exonerations now number 207 nationwide. Yet, DNA testing may reveal only a very small percentage of the actual wrongful convictions, as only ten percent of felony cases involve biological evidence that could be utilized for testing. In addition, not all of the ten percent are actually tested. Many accused who plead guilty or “no contest” to the crime are not eligible for DNA testing even if biological evidence exists. National estimates indicate that there are at least 10,000 wrongful convictions per year. Many more innocent people are arrested and prosecuted, though ultimately not convicted.
Misidentification accounts for more wrongful convictions than all other causes combined. Recent studies and research confirm that an individual placed in an unregulated identification procedure incurs a substantial risk of being misidentified, jailed, and even wrongfully convicted. In the first 82 DNA exonerations, mistaken eyewitness identification was a factor in more than seventy percent of those cases, making it the leading cause of wrongful convictions in DNA cases. An example of a dangerously unreliable eyewitness identification procedure occurred in the highly publicized Duke lacrosse team case in which the identification procedure involved only suspects.  This extreme example serves to remind us of the degree of error and significant suggestion in police lineups. Up to eighty percent of the time, juries believe witnesses making eyewitness identifications, regardless of whether the witnesses are correct. Eyewitness identification testimony compels juries to convict.
III. Memory and Suggestion
A specific look at how memory functions and how suggestion operates illustrates why participation in unregulated lineups creates unreasonable risks of misidentification. Identification procedures differ from other police investigatory procedures in that they solely rely on human memory. Human memory consists of three basic systems: (1) encoding; (2) storage; and (3) retrieval. “Encoding” is the initial processing of an event that results in a memory. “Storage” is the retention of the encoded information. “Retrieval” is the recovery of the stored information. Errors can occur at each step. Contrary to common understanding of memory, not everything that registers in the central nervous system is permanently stored in the mind and particular details become increasingly inaccessible over time.
In fact, details are often permanently lost. To be mistaken about details in the recollection of an event is completely normal and not a function of a poor memory. We can even come to believe that we remember events that never actually occurred. When people construct a memory, they gather fragments of what they have stored and fill in the gaps with what makes most sense to them. Human beings recall events by adding these bits and pieces to their recollections based on their subjective understandings of the world. As Professors Loftus and Ketchum noted, “Truth and reality, when seen through the filters of our memories, are not objective facts but subjective, interpretive realities.” Because these processes are unconscious, individuals generally perceive their memories as completely accurate and their reporting of what they remember as entirely truthful, no matter how distorted or inaccurate they, in fact, may be. An individual’s memories become distorted even in the absence of external suggestion or internal personal distress. Naturally, people tailor their telling of events to the listener and the context. Each act of telling or retelling changes the teller’s memory of the event. Loftus and Ketchum explain, “This is why a fish story, which grows with each telling, can eventually lead the teller to believe it.”
Many conditions such as fear, lighting, distance from the event, surprise, and personal biases all affect memory and recall. For example, racial stereotypes may affect memory and recall. Preconceptions, conscious or unconscious, shape our memories. In one study, participants were shown four news stories, each containing an identical photograph of the same African American man. The stories described: (1) a college professor; (2) a basketball player; (3) a non-violent crime; and (4) a violent crime. After viewing the photos and reading the stories, the participants were asked to reconstruct the photo of the man for each story by selecting from choices of facial features. The stories involving criminal conditions resulted in the selection of more pronounced characteristically African-American facial features. This was particularly true for the violent crime scenario. Participants’ preconceived notions and stereotypes affected their choices.
Human memory is indeed delicate, especially regarding victims and witnesses of crimes. Fear and traumatic events may impair the initial acquisition of the memory itself. At the time of an identification, the witness is often in a distressed emotional state. Many victims and witnesses experience substantial shock because of their traumatic experiences that continue to affect them at the time of identification procedures. In eyewitness identification procedures, witness motivation to make an identification may also be very powerful. Such witnesses may seek rapid resolution and closure, possibly leading to hasty identifications of fillers in the absence of the true perpetrator. Furthermore, their recall is often distorted and untrustworthy because of their traumatic experiences.
The presence of a weapon may also influence a witness’s ability to recall the face of the perpetrator. Studies show that when a weapon is present during an event, perpetrator recognition ability is impaired. The witness may be focusing on the weapon, instead of the culprit, during the criminal episode. In one study where the weapon was placed in a prominent location, recall was worse than when the weapon was partially hidden or off to the side. Other studies indicate that the location of the weapon does not affect memory accuracy. Another explanation may be that the witness is more alarmed and experiences a higher arousal level in the presence of a weapon, which in turn impairs memory acquisition. Some studies show an absence of the “weapon effect” in non-arousing classroom or laboratory settings. A variety of other external factors influence and may impair a witness’s ability to recall an event or the face of a perpetrator. For example, witnesses have difficulty identifying perpetrators cross-racially, which may relate to individual internal biases. Studies show accurate suspect identification rates are much greater under same-race conditions. In addition, older adults have increased difficulty with cognitive performance and perform worse in identification procedures. Ironically, older adults who recall more details about a culprit are actually more likely to make false identifications.
Memory and recall are highly susceptible to suggestion. For example, studies show that misinformation following an event may lead to incorrect recall of the event. If a victim is told that the perpetrator was holding a gun after observing the perpetrator holding a knife, the victim may subsequently report that she recalls seeing the perpetrator holding a gun. Researchers have called this phenomenon the “misinformation effect.” Witnesses who report such unconsciously adopted misinformation do so as rapidly and confidently as they would report an actual memory. Post-event information may also profoundly impair and alter a witness’s recollection of an individual or event. In an illustrative study from 1974, Loftus and Palmer showed two separate groups of participants the same video of two speeding cars and asked them to estimate their speed. In one group the participants were asked, “How fast were the cars going when they smashed?” In the other group, the participants were asked, “How fast were the cars going when they contacted each other?” The participants who were asked about the “smashing” cars estimated the speeds as over 40 mph. Participants who were asked about the cars “contacting” each other estimated the speeds as only 30 mph. When the participants were asked if they saw any broken glass (there was no broken glass), a third of the “smash” participants reporting seeing broken glass while only 14 percent of the “contact” participants did so. The choice of words influences participants’ perceptions.
Human memory is fragile and decidedly prone to suggestive influence. When placed in the context of an eyewitness identification procedure, suggestion may have a powerful impact on a witness’s memory and substantially alter the witness’s identification testimony.
IV. Suggestion in Lineups
Individuals who participate in lineups are exposed to a substantial risk of misidentification resulting from suggestion. How does suggestion in identification procedures result in this risk to the suspect? Suggestion, in the context of eyewitness identifications, is the process by which a witness identifies an individual based on criteria other than the witness’s independent memory of the event alone. It is surprisingly simple for a police identification procedure to become highly suggestive. Very subtle and completely inadvertent circumstances may influence a witness’s choice during a lineup procedure. A witness may feel unconscious pressure to identify someone in the lineup in order to feel that she has not failed her job or disappointed the officer. Thus, a police officer’s mere presence may exert powerful influence on the witness to make an identification not solely based on independent recall of the event. Even the most regulated identification procedure carries with it a high risk of misidentification.
The most well-meaning and hard-working police officer may inadvertently create a suggestive identification procedure. On the other hand, occasionally officers do a less than thorough job at creating a fair lineup, or they even employ intentional suggestion and influence on the witness to choose the suspect. Many police officers are no strangers to trickery and mischief in the name of apprehending criminals. The officer or lineup administrators may unconsciously suggest the identity of the suspect in a lineup in numerous, subtle ways. For example, if the suspect is number three in the lineup, the officer may tell the witness to take her time as she looks at number three. This may alert the witness to number three in the lineup. The officer may also falsely bolster the witness’s confidence in the identification by making statements to her following the identification (“you picked the suspect”). These confirming statements (“confirming feedback”) serve to reinforce the witness’s belief that she identified the proper individual and may actually transform her memory of the event to correlate with her viewing of that suspect pursuant to the “misinformation effect.” Subsequently, the witness will appear highly confident of her identification at trial and influence the jury. Therefore, an earnest officer who knows the identity of the suspect, and in good faith believes in the suspect’s guilt, may provide the eyewitness with confirming feedback that taints the witness’s testimony at trial.
Despite human memory’s delicate nature and identification procedures’ unique susceptibility to bias and suggestion, courts routinely allow prosecutors to use suggestive eyewitness identifications as evidence against an accused. In part, this is a result of the view that suggestion in lineups as solely a due process issue. Wrongful convictions result.
V. Lineups Under Due Process
The current law surrounding suggestive eyewitness identifications uses a due process analysis alone. The current law’s procedural due process view creates an inadequate rule largely because, if a court believes that an identification is correct, it will allow the identification into evidence even if it is suggestive. Not only have the Supreme Court’s protections of the 1960’s been dismantled and misinterpreted, but in light of today’s extensive research in the area of eyewitness identifications and human memory, the rules promulgated by the Supreme Court in the 1970’s do not, in fact, adequately safeguard against misidentifications and wrongful convictions.
In the late 1960’s, the United
States Supreme Court recognized that
defendants’ due process rights may be violated as a result of suggestive
police eyewitness identification procedures. In 1967, the Supreme Court decided three cases involving eyewitness identification,
often referred to as the “Wade Trilogy.” In United States v. Wade, the Court granted defendants the right to
counsel at all post-indictment, live lineup eyewitness identification
procedures. The Court acknowledged the potential suggestive
influence on a witness and the impact such evidence has on a defendant’s
outcome at trial. In Gilbert v. California, the Court
addressed in-court identifications stemming from uncounseled out-of-court
identifications. It held that an in-court
identification may be admitted if it can be shown that the identification is
based upon the witness’s independent observation of the event and not the
improper identification procedure. In the third case, Stovall
v. Denno, the Supreme
Court recognized the need to evaluate identification procedures by considering
the “totality of the circumstances.” Stovall requires that an identification be
suppressed if it is “so unnecessarily suggestive and conducive to irreparable
misidentification that [the accused] was denied due process of law.” The Court held that although the show-up
identification procedure was suggestive, it did not violate the defendant’s due
process rights because of the police’s need for immediate action. The Court found that the show-up identification
was imperative, given that the victim suffered potentially fatal wounds and was
in jeopardy of imminent demise. The level of suggestion and the necessity of
the use of the show-up were balanced against one another to result in the
admission of the identification testimony. In Simmons v. United States, the
Supreme Court declared that an identification procedure should be excluded only
if “it was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” The Court in Simmons used the
circumstances surrounding the event itself to assess the likelihood of
irreparable misidentification. The
In 1977, the United States
Supreme Court announced in Manson v.
Braithwaite that even if a lineup is suggestive, it could still be admitted
into evidence if it is found to be “reliable.” Manson rejected the per se exclusion of
suggestive identifications and held that suggestive identifications may still
be admissible if they are found to be otherwise adequately reliable. This
emphasis on reliability has led to the admission of eyewitness testimony
stemming from highly suggestive identifications. The Court declared a two-tier test for
determining the admissibility of police eyewitness identifications and
courtroom identifications. First, it
must be determined whether the pre-trial identification was unnecessarily
so, a court must ascertain whether, under the totality of the circumstances,
the suggestive procedure gave rise to a substantial likelihood of irreparable
Court concluded that in order to ascertain if there is a substantial likelihood
of irreparable misidentification, there must be an assessment of the reliability of the initial
The Court in Manson used the test established in its 1972 decision in Neil v. Biggers to determine when an identification procedure meets the test for reliability. The Biggers Court enumerated several factors to determine if a suggestive identification is reliable: (1) the witness’s opportunity to view the suspect; (2) the witness’s degree of attention; (3) the accuracy of description; (4) the witness’s level of certainty; and (5) the time between incident and confrontation, i.e., identification (hereinafter referred to as the Biggers factors). In Biggers, the perpetrator grabbed the victim in a dimly lit area and raped her in a wooded area. The victim testified she could see her assailant well because the moon was full. The Court found that these circumstances indicated a strong likelihood that the identification was accurate and stemmed from the witness’s independent memory of the event.
courts include other corroborating evidence of guilt as a sixth factor to the
enumerated five Biggers factors. The
Second Circuit in particular recognizes the absurdity of using other
corroborating evidence of guilt to support the introduction of eyewitness
testimony into evidence. The Second
Circuit has written, “Even where there was irrefutable evidence of the
defendant’s guilt, if an identification was made by a witness who, it
transpired, was not even present at the event, we could hardly term the
identification reliable.” On the contrary, the Seventh Circuit considers
corroborating evidence of guilt when assessing the reliability of an
identification procedure. In
The level of suggestion should be balanced against the reliability of the identification. The Court in Manson stated, “Against these [Biggers] factors is to be weighed the corrupting effect of the suggestive identification itself.” Many courts fail to balance reliability against level of suggestion and admit suggestive identifications if the Biggers factors are met. These results are partly a consequence of courts’ struggle with the notion that nonetheless valid identifications may occur despite highly suggestive identification procedures. Courts seem unable to create a rule consistent with the due process viewpoint that can adequately discourage police from employing suggestive procedures, protect the innocent from misidentifications, and allow correct identifications into evidence.
The due process reliability assessment used by courts today does not prevent irreparable misidentifications as it was intended to do. The Biggers factors do not provide a true indication of an accurate identification, because suggestion in the lineup significantly influences the reliability assessment. The majority of the Biggers factors rely on self-reports of the witness. However, self-reports of the witness are subject to the same witness’s distortions of memory and are influenced by the same suggestion present in the eyewitness identification procedure. A court makes its reliability assessment subsequent to the lineup at a hearing on a defense motion to suppress eyewitness identification testimony. A court generally evaluates the Biggers factors from the witness’s answers to questions at the hearing, well after the impact of the suggestive influence.
It is paradoxical, but the more suggestive an identification procedure is, the more reliable a witness will appear. For example, if an identifying witness is advised immediately after a lineup that she identified the suspect (suggestive “confirming feedback”), she will report a higher level of confidence in her identification. This report of confidence satisfies one of the Biggers factors and will indicate reliability of the identification to a court when, in truth, it may only be a reflection of the suggestion present in the lineup procedure. In fact, suggestive identifications result in witnesses giving responses that indicate greater reliability of the identification on all five of the Biggers factors.. This effect was demonstrated in an experiment in which witnesses were given confirming misinformation following a simulated identification where the culprit was not present. Some participants were given the suggestive comment that they identified the right person, and others were told nothing. The lineups were otherwise identical. Of the participants who were not subject to the suggestion, only fifteen percent indicated later that they were certain they identified the right person, but fifty percent of the participants who were given the suggestive information reported identifying the right person. Furthermore, the participants who received the suggestive misinformation gave descriptions of the perpetrator that contained greater detail. These witnesses also reported having a better view of the perpetrator and observing the culprit for a longer period of time. In other words, every Biggers factor improved in reliability under suggestive circumstances. Accordingly, the presence of the Biggers factors does not significantly reduce the likelihood of misidentification. A Fourth Amendment perspective of suggestive eyewitness identifications presents alternative solutions.
VI. Lineups Under the Fourth Amendment
The significant risk of misidentification from eyewitness identifications requires protection under the Fourth Amendment. First, a compelled identification procedure is a seizure and triggers the Fourth Amendment. Second, unregulated eyewitness identifications are prone to high levels of error and suggestion. Both the physical invasion and the risk of misidentification of the lineup require Fourth Amendment consideration. It is useful to examine how courts currently apply the Fourth Amendment to pre-arrest police investigatory procedures. Ordinarily, a full seizure or arrest requires probable cause., which means that the facts are such that a prudent person would believe that a suspect has committed, is committing, or is about to commit a crime. When an individual’s freedom of movement is restricted, he or she has been seized under the Fourth Amendment. The Supreme Court wrote in Terry v. Ohio, “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.” Courts agree that a physical lineup constitutes a seizure under the Fourth Amendment. The Fourth Amendment applies as fully to the investigatory stage as it does to arrest. As the Supreme Court recognized in Davis v. Mississippi, “Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention.”
There are exceptions to the general rule that probable cause is required prior to a search or seizure. For example, as seen in Terry v. Ohio, officers may conduct investigatory stops of individuals on less than probable cause. In order for an officer to stop (or detain) an individual, even briefly, the officer must have specific and articulable facts that reasonably warrant such an intrusion. An investigatory stop, or “Terry stop,” which requires reasonable or founded suspicion, exists when a reasonable person would feel that the person’s right to move has been restricted. Founded or reasonable suspicion is defined as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” Further, the law permits police to conduct a somewhat more intrusive privacy invasion under certain circumstances in the absence of probable cause when the officer has reasonable grounds to believe that the suspect may be armed. In this circumstance, a limited “frisk” on the outer clothing is permissible for officer safety only. The Court has reaffirmed that the probable cause exception from Terry should be narrowly applied, noting that “[b]ecause Terry involved an exception to the general rule requiring probable cause, the Court has been careful to maintain its narrow scope.”
Some police-citizen encounters are permissible in the absence of any police suspicion of criminal activity. These include circumstances in which courts find that the citizen was free to leave and thereby not “seized” within the purview of the Fourth Amendment. Situations where the citizen is free to leave are often called “consensual encounters,” implying that the citizen has given consent and that the citizen has no objection to the interaction with the police. However, in the majority of these situations, the police initiate the interaction. In many cases, consensual encounters escalate into limited seizures. In these situations, the legality of the stop is often an issue on appeal.
Another form of police-citizen encounter requiring no suspicion of criminal activity is termed “community caretaking.” In these situations, police officers are performing duties consistent with civil emergencies or a citizen’s personal crisis such as assisting in locating a lost child. For example, in State v. Chisholm, an unmarked police car noticed a citizen had driven away with his hat still placed on his car and thus radioed a police car to help the citizen “save” his hat. Upon stopping the car to inform the citizen about his hat, the officer noted contraband between the passenger and the driver. The officer then arrested and charged the occupants. Thus, a citizen was seized and an arrest was legally accomplished without either probable cause or reasonable suspicion during a community caretaking activity.
Courts have found other non-testimonial investigatory searches and seizures to require less than probable cause. In Davis v. Mississippi, the Supreme Court found that, although the taking of fingerprints is no less subject to the constraints of the Fourth Amendment than other detentions, police may compel fingerprints in the absence of probable cause under certain specific circumstances. The Court rationalized that the taking of fingerprints constitutes a less serious intrusion on personal liberty than other types of police searches and detentions. Saliva-swabbing for DNA testing does not require probable cause for comparable reasons. Some states have enacted statutory guidelines for seeking “Nontestimonial Identification Orders” (hereinafter referred to as “NTOs”). These rules define when officers may conduct certain investigatory searches and seizures such as DNA testing and fingerprinting. These NTOs generally mandate a showing of reasonable grounds to suspect that the person (suspect) committed the crime in question. Courts, legislatures, and police agencies take very seriously pre-arrest investigatory intrusions under the Fourth Amendment, going as far as to seek court orders for such intrusions.
In 1971, the Second
Circuit, in Biehunik v. Feliceta,
specifically held that placing an individual in a lineup constitutes a seizure
under the Fourth Amendment. In Biehunik,
the lower court issued an injunction preventing the appearance of 62 police
officers in lineups because such compelled appearance constituted a “seizure”
in the absence of a warrant or probable cause. There was no basis to believe that all 62
officers had committed a crime. Biehunik held that probable cause was
not necessary to compel the appearance of the officers in the lineups in part
due to their roles as police officers. The court reached this conclusion using the
test announced by the Supreme Court in Camara
v. Municipal Court, finding that the governmental interest in the
particular intrusion must be weighed against the offense to the individual’s
personal dignity and integrity. The court in Biehunik found that the substantial public interest in ensuring
police integrity outweighed the individual officer’s privacy interests. In Biehunik, police officers were
compelled to submit to a lineup in the absence of any suspicion of criminal
activity. Accordingly, what level of
suspicion that a civilian has committed a crime should exist before requiring the
civilian’s appearance in a lineup? Biehunik indicates that an individual
who is not a public official would require probable cause before a compelled
appearance in a lineup. Yet, it seems
extreme to hold that a civilian may not be placed in a lineup without probable
cause, but a police officer may be compelled to participate in a lineup absent
any suspicion of criminal activity whatsoever. The
Supreme Court of Washington has held that an individual may not be ordered to
participate in a lineup where no probable cause exists to believe that the
individual has committed the offense under investigation. On
the other hand, the Court of Appeals for the
Courts generally equate the level of physical intrusion to the individual with the level of Fourth Amendment protection. Should the unusual risk associated with participation in a lineup provide the suspect with heightened Fourth Amendment protections? A simple look at the plain language of the Fourth Amendment provides guidance. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. . . . ” The appropriate question pursuant to the language of the Amendment is: Is the seizure reasonable? With regard to unregulated identifications, the answer hinges on whether or not the reliability associated with an investigatory procedure is relevant to determine its reasonableness as a seizure under the Fourth Amendment. Eyewitness identification procedures are unusually unreliable. In fact, one finds it difficult to think of a pre-trial investigatory procedure less reliable. Some jurisdictions are adopting procedural guidelines for the implementation of eyewitness identification, but these rules are not accompanied by any threat of exclusion in court to encourage their use by the police. Misidentifications are the leading cause of wrongful convictions. It follows that a significantly unreliable investigatory police procedure that may lead to misidentification and even wrongful conviction is unreasonable. Because an unregulated lineup is unreliable, and thus unreasonable, in light of its status as a seizure, such a lineup seems on its face to violate the Fourth Amendment.
However, simply looking at the plain language of the Fourth Amendment may not end the inquiry. Courts interpret reasonableness under the Fourth Amendment in terms of the level of intrusion. As the Supreme Court stated in 1967, in Camara v. Municipal Court, “[T]here is no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.” It may not be possible to proclaim that a seizure is unfair and therefore unreasonable through a mere review of the language of the Fourth Amendment. What factors do courts consider in evaluating the reasonableness of a seizure? Reasonableness involves balancing governmental interest against the intrusion. Not only does an unregulated lineup involve an increased intrusion to the individual resulting from the risk of misidentification, but there is also a powerful governmental interest in protecting citizens from misidentification. Indeed, courts have linked Fourth Amendment reasonableness to the reliability or trustworthiness of an investigatory procedure. In Davis v. Mississippi, the Court compared a detention for purposes of obtaining fingerprints to one for lineup purposes. Holding that probable cause was not necessary to detain the defendant for fingerprinting, the Court noted that fingerprinting is a more reliable investigatory procedure than eyewitness identifications:
Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the ‘third-degree.’
Therefore, at least in part because fingerprinting is more reliable and effective than eyewitness identifications, the Court found that less than probable cause was required. This supports the conclusion that the less reliable or effective an investigatory procedure is, the greater the Fourth Amendment concerns.
Courts subsequently have found the
lack of reliability in an investigatory procedure to trigger heightened Fourth
Amendment protections. In 1983, in State v. Hall, the Supreme Court of New
Jersey held that only lineup procedures comparable in reliability to
fingerprinting may be sustainable on less than probable cause. The court, referring to language in
A detention for fingerprinting was also regarded as essentially a reliable, simple and expeditious proceeding that could be conducted fairly and without palpable abuse. Accordingly, we conclude that those identification procedures that are comparable to fingerprinting will be sustainable upon a showing of less than probable cause.
The court in Hall proclaimed that lineups could be reliable and effective, thereby requiring less than probable cause, when conducted properly and fairly. The court did not specify how police agencies should be expected to assure that a lineup procedure be comparable to fingerprinting. With scientific knowledge about the bias and error associated with eyewitness identifications, procedural guidelines are the most rational means to achieve more reliable identification procedures. Hall holds explicitly that the level of prejudice toward the suspect affects whether or not an intrusion is improper for Fourth Amendment purposes. The fairness of the procedure and risk of error are directly connected to the level of intrusion for Fourth Amendment purposes. The Hall court stated:
the Supreme Court in
In many circumstances, the level of physical intrusion on an individual involved with an identification procedure may not be much greater than that required for a fingerprint or an investigatory detention. The level of physical intrusion varies widely in eyewitness identifications. It ranges from a very brief “show-up” on the street to a live lineup at the police station requiring considerable time and effort on the part of the detainee. In fact, application of procedural safeguards will often result in a greater physical intrusion to the individual. The application of the guidelines proposed in this article will necessarily increase the level of physical intrusiveness involved in any compelled eyewitness identification procedure. For example, it will require that the suspect be detained a longer period of time while a blind administrator and appropriate fillers are located. Does the Fourth Amendment permit or even require a greater physical intrusion to the person’s body to protect him or her from the potential of some greater harm via misidentification? Given the frequency of misidentifications and wrongful convictions, this potential harm is one that should be of serious governmental and public interest.
Courts have long recognized the risk of suggestion and prejudice in eyewitness identifications. Yet, courts evaluate whether or not suggestive eyewitness identifications are constitutional solely through a due process analysis. This due process perspective has failed to protect citizens from an unreasonable risk of misidentification. The law will most effectively protect citizens from the dangers of unregulated eyewitness identifications if courts recognize that the risks involved with lineups trigger heightened Fourth Amendment protections. The Fourth Amendment provides more specific protections than does a due process evaluation and, consequently, courts must consider the Fourth Amendment first. As the Supreme Court wrote in Albright v. Oliver, “Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.”
A Fourth Amendment analysis of unfairly suggestive eyewitness identification procedures will necessarily result in the exclusion of the identification testimony at trial. The current law’s insistence on analyzing suggestive identifications through a due process lens creates an inadequate rule largely because if courts believe a suggestive identification is nonetheless correct, they allow the identification into evidence. A Fourth Amendment consideration of an identification procedure should not assess whether or not the identification was, in fact, accurate despite the lineup’s lack of fairness. For example, when a court determines whether the search of a defendant that located cocaine in the defendant’s pocket was an unreasonable search under the Fourth Amendment, the court will not consider whether the substance was, in fact, cocaine. If the search was unreasonable, the court will exclude the drugs from evidence. In this example, there is no question that the individual was actually guilty. But in the interest of regulating police conduct and protecting innocent citizens, the exclusionary rule applies. Otherwise, courts have no power to protect citizens from police misconduct. Similarly, without excluding identification testimony resulting from unregulated identification procedures, courts lack any authority to encourage implementation of safeguards to protect the innocent against misidentifications resulting from suggestive identification procedures. The deterrence of abusive or unfair police conduct is a vital role of the exclusionary rule, especially when stemming from Fourth Amendment violations. The Supreme Court noted:
Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct.
Cases founded on due process claims are void of any discussion of the goal of deterrence of police misconduct via the exclusionary rule. Courts’ only authority to protect citizens from invasions of their liberty is through the exclusionary rule, as courts are otherwise powerless to influence or regulate police procedures. The exclusionary rule, as it applies to the Fourth Amendment, contains “remedial objectives,” and courts have found that it applies only where the objective of deterrence can be furthered.
Police often create bias and unfair identification procedures unwittingly. One could argue that the exclusionary rule cannot deter inadvertent conduct. However, it would be intellectually dishonest for a police agency to assert that it did not know that inadvertent influences on witnesses are commonplace in the absence of procedural safeguards. In other words, police know that regulating lineups is good police practice and that failure to regulate a lineup puts the suspect in jeopardy of misidentification. Failure to use specific procedural standards is not accidental. Further, “Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” Courts should apply the exclusionary rule if it can reasonably be said to instill a “greater degree of care”  in officers in future investigations. The judiciary should not be less concerned with regulating police conduct in an eyewitness identification procedure than in more traditional searches and seizures. Police conduct surrounding identification procedures requires regulation and judicial enforcement.
Courts should apply the exclusionary rule where the benefits of deterrence outweigh the social costs. The potential social cost of applying the exclusionary rule to eyewitness identification testimony would be the inadmissibility of eyewitness testimony from one government witness. In some circumstances, the government may be unable to proceed with the charges. In many other cases, the prosecution will be capable of proceeding to trial with other identification testimony and other incriminating evidence, albeit with a weaker case. The social cost is exceedingly low when balanced against the conviction of an innocent person. The social cost from the application of the exclusionary rule in other Fourth Amendment violations involves the exclusion of unquestionably valid evidence. For example, when an illegal, warrantless search reveals drugs, a trial court will suppress the drugs. On the other hand, the social cost of excluding eyewitness testimony stemming from unregulated identification procedures includes the significant likelihood that the court is excluding invalid evidence. Therefore, application of the exclusionary rule to eyewitness testimony protects innocent citizens.
The benefit of applying the exclusionary rule to identification procedures is that it protects the innocent from wrongful conviction. This prospect is not speculative conjecture but rather a concrete reality, because faulty eyewitness identifications account for more wrongful convictions than all other causes combined. This benefit far outweighs the social cost. A vital distinction between lineups and other police procedures triggering the Fourth Amendment is that in eyewitness identifications, innocent citizens may be arrested due to police misconduct. Police will not ordinarily arrest innocent citizens who are subject to other Fourth Amendment violations stemming from police misconduct, precisely because the police will not discover any condemning evidence. The societal interest in regulating police conduct for the majority of other Fourth Amendment violations is to protect the innocent citizen’s personal dignity and privacy. Conversely, a suggestive or unregulated lineup may produce damning but false eyewitness testimony that could result in the arrest and even conviction of an innocent citizen. The innocent citizen has more to lose as a result of police misconduct during a lineup than suffering mere embarrassment or personal indignities. The Biggers “reliability” assessment used by the courts is unsuccessful in determining a correct identification from an incorrect one. Therefore, the current law does not accurately recognize misidentifications and exclude them from evidence at trial, placing citizens in great jeopardy. Application of procedural safeguards will facilitate the identification of the truly guilty by helping to ensure that the witness has identified the suspect from her independent recollection of the event. Therefore, to apply a per se rule of exclusion for unregulated lineups is a unique application of the exclusionary rule, because it protects the innocent as well as encourages the arrest and conviction of the guilty.
Identification procedures are a particularly fertile soil for police-citizen misunderstanding, police mischief, and citizen risk. Jerome H. Skolnick asks, “To what extent if at all is it proper for law enforcement officials to employ trickery and deceit as part of their law enforcement practices?”  He continues, “The reality is: Deception is considered by police—and the courts as well—to be as natural to detecting as pouncing is to a cat.” Indeed, deception may be a part of all aspects of police work from arrest to trial, but Skolnick states that the area where deception is most prevalent is in the investigatory stages. A quote from Justice Without Trial is appropriate here: “The policeman operates as one whose aim is to legitimize the evidence pertaining to a case, rather than as a jurist whose goal is to analyze the sufficiency of the evidence based on case law.” In short, Skolnick states that the police are “routinely permitted and advised to employ deceptive techniques and strategies in the investigative process.” Consequently, Fourth Amendment analysis of unregulated identification procedures is crucial to the fair administration of justice, because under the Fourth Amendment, courts may regulate police behavior and implement consequences for failure of police to use adequate procedural safeguards.
Like their treatment of coerced confessions, courts should suppress identification testimony stemming from a biased or unfair procedure. Courts agree that the use of a coerced confession against a defendant denies the defendant due process of law no matter how strong the other evidence against him at trial, because the violated right is so fundamental. The similarities between a coerced confession and an unregulated identification procedure are obvious. Both outcomes rely on the functioning of the human mind. Both procedures may be highly influenced by suggestion and psychological influence of police officers. Both types of evidence are persuasive to juries to convict. Both procedures may result in erroneous outcomes by both purposeful as well as inadvertent police behavior. Citizens placed in identification procedures merit protections similar to those individuals subjected to interrogations. Consequently, under a Fourth Amendment analysis, courts should suppress an identification stemming from an unreasonable suggestive identification seizure regardless of the culpability of the suspect.
According to Justice Brennan, “Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’” How can one sensibly assert that unregulated, suggestive identification procedures do not invade and threaten an individual’s personal security? Certainly, criminal accusation, jail, prosecution, and even wrongful conviction are among the most profound invasions of personal security. To say that the mere risk of these personal security invasions does not equate to an increased privacy concern would be intellectually short-sighted—as if to say that one only needs to wear a parachute after jumping out of the plane, not to don it while still on board. Once you are falling, you cannot put on the parachute. Once a misidentification has occurred, arrest and prosecution are imminent. It is too late for Fourth Amendment protections, and the wrongly accused is assured of suffering tremendous invasions of personal security that will affect the rest of the accused’s life. To protect citizens from such invasions, the protections must be implemented prior to the eyewitness identification procedure itself.
VII. Procedural Safeguards
A. Specific Suspicion of Criminal Activity Required for Appearance in a Lineup
The Fourth Amendment does not provide a uniform legal criterion through which officers may compel an individual to participate in a lineup. Placing an individual in a lineup exposes him or her to substantial risk. The reality of everyday police work is that police routinely present individuals to victims and witnesses on the street for identification in the absence of any procedural safeguards. The placement of an individual in a lineup is a greater privacy intrusion for Fourth Amendment purposes than an “investigatory stop,” but is less of an intrusion than arrest. Police frequently seek probable cause for arrest through eyewitness identification procedures. To require probable cause prior to an identification procedure may unfairly tie the officer’s hands— it may require the officer to forego the apprehension of an unreasonable number of guilty individuals due to lack of probable cause for arrest. Consequently, this article proposes a new legal standard that will reasonably restrict which individuals may be placed as suspects in any identification procedures. Police would have to meet this new legal criterion before they could compel an individual’s appearance in a lineup. It is reasonable and desirable to propose a straightforward standard for identification procedures that would be similar to the current “reasonable suspicion” standard (i.e., Terry stop), but with the addition of a particularized wrongdoing component. Under this proposed standard, the language to define the grounds for placing an individual in an identification procedure would nearly mirror the standard for investigatory detentions. It would state:
An individual may be placed in an identification procedure only if the officer has a particularized suspicion based upon an objective observation that the person being placed in the procedure has been engaged in the specific criminal wrongdoing observed by the witness.
Should the government fail to meet the burden of proving that the officer possessed this level of suspicion prior to compelling an individual’s attendance at a lineup, the trial court should exclude the identification. This standard would not differ from the current standard required for an investigatory stop, other than that the officer must have specific and articulable facts to reasonably believe that the suspect was in fact the culprit of the specific crime observed by the witness, as opposed to some generalized, unidentified wrongdoing. Application of such a standard is practical and understandable, and will diminish the peril in which a suspect is placed pursuant to even the most regulated lineup procedure.
B. Guidelines to Reduce Suggestion in Eyewitness Identification Procedures
Effective eyewitnesses identification warrants specific
procedural guidelines to minimize suggestion and bias in the lineup. State
v. Hall suggests that identification procedures predicated on less than
probable cause be admissible only if they are equivalent in reliability to
fingerprinting. Eyewitness identifications may never be as
reliable as a scientific procedure like fingerprinting. Yet, implementing specific procedural
guidelines that minimize prejudice and error will make identification
procedures more reliable. Only if such
guidelines accompany a lineup should a court sustain the lineup on less than
probable cause under the Fourth Amendment. Accordingly,
this article suggests nine specific guidelines to protect innocent citizens
from misidentification for use during an identification procedure. These
guidelines include the use of blind administrators and a sufficient number of
fillers who may each reasonably resemble the suspect.
Adopting mandatory procedures for eyewitness identifications is the most
significant step police could take to reduce wrongful convictions. As
The Fourth Amendment requires two steps to protect a suspect from an unfair and unreliable lineup procedure. First, police must have reasonable suspicion of criminal activity prior to conducting a lineup. Second, the lineup as conducted must continue to be reasonable in accordance with the Fourth Amendment. In fact, a lineup seizure may be viewed as a series of steps, each requiring Fourth Amendment protections. Generally, a suspect will first be detained requiring founded suspicion of criminal activity. Then, if the police obtain a heightened degree of specified founded suspicion, they may order the suspect to participate in a lineup. Lastly, as the lineup occurs and the suspect is actually exposed to the risk of misidentification, procedural guidelines are necessary under the Fourth Amendment. During all three phases of this police investigatory procedure, the citizen is placed in different and increasing levels of risk and intrusion under the Fourth Amendment. Consequently, each phase of the lineup investigatory procedure requires safeguards. Under a Fourth Amendment analysis, failure to use proper procedural guidelines in a pre-arrest compelled eyewitness identification procedure would result in exclusion of the identification testimony at trial.
The use of safeguards proposed in Section VII has two types of exceptions: (1) those identification procedures that do not trigger the Fourth Amendment, and (2) those that are “reasonable” under the Fourth Amendment without the safeguards. First, only a compelled appearance in a lineup would be considered a seizure thereby implicating Fourth Amendment concerns. One is not seized if he or she is free to leave. Thus, giving consent to participate in a lineup would waive these procedural requirements because the police would not have seized the individual. Consent is a tricky issue when it comes to police-citizen encounters. When does a citizen know that he or she is free to refuse? As noted earlier, “consensual police encounters” do not require any level of suspicion and do not trigger the Fourth Amendment. Bear in mind that officers do not (the vast majority of the time) ask the citizen for permission to approach prior to making the request for a driver’s license, to participate in a lineup, or for other information. If the government intends to use consent as an exception its burden should be great. The prosecution should be required to show that the consent was, in fact, informed. This would include informing the suspect of: (1) the right not to consent; (2) the risks of misidentification in an unregulated lineup or show-up; and (3) what rights the suspect is giving up, including the specific guidelines and level of suspicion normally required. The most expeditious and thorough procedure for obtaining such consent would be via a waiver form that officers could carry with them for the suspect to sign. This article does not intend to advocate revamping the entire body of law regarding the police obligation to inform citizens of their right to refuse to a search. Currently, the police have no obligation to do so. However, in the typical search and seizure, the innocent citizen has nothing to fear past embarrassment and inconvenience. The innocent citizen invited to participate in a lineup should fear misidentification and even wrongful conviction. One can easily imagine a scenario in which an innocent citizen would prefer to consent to a show-up on the street as opposed to a drive to the station to wait for a proper lineup. Yet, one can also easily surmise that this innocent citizen is completely unaware of the risk she is taking by participating in the show-up. Only adequate information regarding the risk of misidentification should render such consent voluntary.
Other exceptions trigger Fourth Amendment concerns, but courts may find them reasonable in the absence of procedural safeguards. One example is identification procedures that take place following arrest. In this instance, probable cause that the individual committed the crime already exists. At this point, the Fourth Amendment may not protect the arrestee from the privacy invasion involved with a lineup to the same degree. In fact, the Federal Rules of Criminal Procedure go as far as to state:
Once an accused is lawfully in custody for one offense, the Government may place him in a lineup for any number of offenses it chooses without prior court authorization, so long as it can otherwise assure the presence of counsel at the lineup, that the lineup will be conducted in conformity with due process and presentment before a magistrate without undue delay.
Furthermore, defendants have a right to counsel at post-arrest lineups. An individual’s Sixth Amendment right to counsel attaches when judiciary proceedings have begun against the individual (this includes the filing of information, arraignment, or preliminary hearing).
Perhaps a sensible rule would be to require implementation of guidelines to minimize suggestion in lineups even following probable cause unless counsel is present. As Justice Brennan stated in United States v. Wade,
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 the presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that . . . the post-indictment lineup [is] a critical stage of the prosecution at which [defendant is] as much entitled to such aid . . . as at the trial itself.
One should recall that the existence of probable cause in no way negates the necessity for a due process inquiry. This raises the issue of in-court identifications. Although any in-court identification is necessarily highly suggestive, it will not trigger Fourth Amendment considerations. In-court identifications necessarily take place after the suspect is arrested and charged and after probable cause has been found by both the judge and government. In-court identification admissibility must remain a due process analysis.
Exigent circumstances provide another exception. It is in the public’s interest to allow strictly limited exceptions relying on exigent circumstances. The reasonableness of an unregulated identification procedure “depends on a balance between the public interest and the individual’s right to personal security. . . . ” An example of legitimate exigent circumstances can be found in Stovall v. Denno. In Stovall, the defendant was the only suspect presented to a victim at the hospital—there were no fillers. However, the officers had reason to believe that the victim was mortally injured and would soon die.
One could assert that a likely correct eyewitness identification obtained by illegal means might satisfy an inevitable discovery exception to the application of the exclusionary rule. Courts apply the inevitable discovery doctrine when it is determined that the police would have obtained the same evidence by other legal means. For example, if the police obtain statements from a suspect that lead to incriminating evidence while violating the suspect’s right against self incrimination, that evidence may still be admissible if it can be shown that the police would have located the evidence through other legal means anyway. When a court applies the inevitable discovery doctrine to determine whether an identification is correct, it operates under the presumption that, had the police used proper safeguards, the same suspect would have been identified anyway. However, this rationale fails on three grounds.
First, courts generally view the “inevitable discovery” doctrine as an exception to the “fruit of the poisonous tree” rule. Thus, most courts do not allow the admission of illegally obtained primary evidence under the inevitable discovery doctrine. An eyewitness identification stemming from a suggestive procedure is not derivative, but the primary fruit of the police misconduct and should therefore not be eligible under the inevitable discovery exception.
Second, the inevitable discovery rule applies only if the police do not benefit from the misconduct, i.e., the police may not be placed in a better position through a failure to act properly. In other words, the law should not permit the police to further their investigations or obtain admissible evidence for trial by breaking the rules or through misconduct. Acquiring identification testimony through the use of police suggestion or a violation of the specified founded suspicion requirement is a benefit from police misconduct.
Finally, to apply the inevitable discovery doctrine, it must be determined that the evidence would have actually been discovered. As it pertains to eyewitness identifications, an inevitable discovery analysis would call for the determination that the same witness would have identified the same suspect despite the suggestive or unfair lineup procedures. The Court claimed in Nix v. Williams that “inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.” Courts are unable to reasonably ascertain whether the witness would have identified the same suspect even in ideal circumstances. Therefore, this analysis is speculative and will not satisfy an inevitable discovery inquiry.
This article focuses on the pre-arrest compelled appearance of an individual in a lineup—a situation that clearly triggers the Fourth Amendment, because the person’s body is seized and the individual is not free to leave. There may be other exceptions not contemplated within the scope of this article. For example, does the placement of one’s photograph in an identification procedure implicate the Fourth Amendment and require protections? What if an individual is not even aware that her image was placed in an identification procedure as a suspect? The issue with regard to photographs would be whether the placement of an individual’s photograph in an identification procedure is a search or seizure in terms of the Fourth Amendment.
The Supreme Court has held that the Fourth Amendment is triggered in some circumstances where the individual may not even be aware that he or she is being searched. For example, in Kyllo v. United States, the Court found that the following constitutes a search: The police used a heat-detecting device only on the outside of an individual’s home. When the police discovered heat, they inferred that an illegal substance was inside the house from the existence of the heat on the exterior of the house. Therefore, the Court held that the police investigatory procedure caused an invasion of privacy pursuant to the Fourth Amendment. What a person knowingly exposes to the public is not subject to Fourth Amendment protections. Although one’s photograph may be taken without Fourth Amendment implications, if the individual is in a location where the individual has no reasonable expectation of privacy, it is debatable whether the Fourth Amendment should limit what the government may subsequently do with that photograph. If we accept the premise that potential risk of harm and error equates to a Fourth Amendment privacy intrusion, then we may answer in the affirmative.
IX. Summary and Recommendations
The compelled physical appearance of an individual in an eyewitness identification procedure constitutes a seizure within the meaning of the Fourth Amendment. This article presents the idea that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. This article also explains why courts’ current reliance solely on a procedural due process analysis of eyewitness identifications fails to protect citizens from misidentification and should not be the first constitutional consideration when determining the lawfulness of an identification procedure. It is simply not possible to separate the influence of insufficient procedural safeguards in a lineup from the validity of the ensuing identification. The Biggers factors dramatically fail to measure the accuracy of an identification. The influence of suggestion from the lack of adequate procedural safeguards increases the appearance of a correct identification without being a true indicator that the identification is actually valid. In other words, it is conjecture to presume that an unregulated lineup identified the true culprit.
The risk of misidentification from an unregulated lineup is well-documented. Numerous research and laboratory findings demonstrate that human memory is highly susceptible to suggestive influence. Eyewitness identification procedures are particularly susceptible to suggestion and bias. Courts cannot ignore this risk of error associated with identification procedures under the Fourth Amendment. Courts recognize that the physical aspect of a lineup is a privacy invasion pursuant to the Fourth Amendment. Cases such as Davis v. Mississippi also suggest that the lack of reliability of certain pretrial investigatory procedures requires heightened Fourth Amendment protections.
This article further recommends the implementation of two procedural safeguards for use in eyewitness identifications. First, police must have a minimum of “specified suspicion” of criminal activity before requiring an individual to appear in a lineup. Second, specific procedural guidelines designed to minimize suggestion in the lineup should be required. Failure to utilize these procedural safeguards should result in the exclusion of any identification testimony at trial, because the purpose of the exclusionary rule as it pertains to the Fourth Amendment is to regulate police conduct. Such a rule is also in accord with general standards of fairness and justice.
This article suggests that a due process inquiry occur after the assessment of Fourth Amendment claims. The benefits of the application of the exclusionary rule to identification testimony unaccompanied by procedural safeguards outweigh the social cost. No pretrial police investigatory procedure other than eyewitness identifications produces significant numbers of false arrests of innocent individuals. Regulation of eyewitness identification procedures will result in the protection of the innocent from arrest and wrongful conviction.
Studies confirm that unregulated eyewitness testimony is often
“hopelessly unreliable.” Misidentifications are the greatest single
source of wrongful convictions in the
Data regarding misidentifications proves there is significant risk in allowing unregulated identification procedures. Seizures involving such significant risk are not reasonable under the Fourth Amendment. The guidelines outlined here are based on scientific research regarding identification procedures and human memory. These safeguards would serve to minimize the risk of misidentification that is so prevalent in identification procedures. Furthermore, with these safeguards, eyewitness identifications admitted into evidence at trial would carry greater evidentiary value and greater weight with the jury. Prosecution cases would then be stronger. Procedural safeguards would also insulate the police from criticisms of biased eyewitness identifications, bolster public confidence in the police, and promote a more positive image of the police in general.
Given our more comprehensive understanding of human memory and the influence of suggestion, perhaps courts will appreciate eyewitness identification procedures in terms of both privacy and due process. If the reasonableness of a seizure is determined by balancing governmental interest against the intrusion, then the Fourth Amendment requires procedural safeguards for identification procedures on both accounts. The government has a strong interest in protecting citizens from misidentification. Further, the high risk of misidentification that accompanies an unregulated lineup equates to an increased security risk under the Fourth Amendment. The Supreme Court has long found that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” As Bobby Joe Leaster’s story shows, misidentifications do happen, despite strong indicia of reliability. One can hardly envision a governmental intrusion more serious and more offensive than wrongful accusation, jail, prosecution, conviction, or even death.
 Charles Kenney, Justice for Bobby Joe, The Boston Globe Magazine, Feb. 28, 1988, available at http://www.nodp.org/ma/stacks/b_leaster.html.
Commonwealth v. Leaster, 479 N.E.2d 124, 126 (
 See Kenney, supra note 1.
 See Neil v. Biggers, 409
 See Manson
v. Braithwaite, 432
 The Court’s
current due process approach has created significant confusion, and as a
result, there is no uniformity between courts on the issue of whether
corroborating evidence of guilt should be used to assess the validity of an
identification. Seven circuit courts
disagree about whether this factor should be included. The First, Fourth, Seventh, and Eighth
Circuits consider other evidence of guilt, while the Second, Third, and Fifth
Circuits only look to the reliability of the identification itself. See Suzannah
B. Gambell, The Need to Revisit the Neil
v. Biggers Factors: Suppressing
Unreliable Eyewitness Identifications, 6
 See Timothy P. O’Toole & Giovanna Shay, Manson v. Braithwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U.L. Rev. 109, 110 (2006) (noting that 88 percent of rape case exonerations and 50 percent of murder case exonerations have been due to misidentifications).
 “Police eyewitness identification procedures” include lineups and show-ups and may be referred to hereinafter simply as “lineups.” A “show-up” is an identification procedure where only one individual or photo is presented to the witness for possible identification.
 The exclusionary rule, as it applies to the
Fourth Amendment, has a remedial function.
See Weeks v.
 See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. Crim. L. & Criminology 523, 542 (2005).
 Elizabeth F. Loftus, Memory Faults and Fixes, Issues in Sci. and Tech., Summer 2002, at 43.
 See Neil
v. Biggers, 409
 See David E. Paseltiner, Twenty-Years of Diminishing Protection: A Proposal to Return to the Wade Trilogy Standards, 15 Hofstra L. Rev. 583, 606 (Spring 1987).
 The skeptical reader should withhold judgment and render a verdict after reading the entire article.
 See, e.g., Davis v.
 See Gambell, supra note 11, at 190 (citing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal § 4-1 (3d ed. 1997)).
Comments of the Florida Innocence Initiative, Inc. at 5, In re Amendment to the
 FL: Post-Conviction DNA Testing Update and
Death Row Exoneration, The
Criminal Justice Reformer: Vol.
3. No. 3. (The Justice Project,
 See Gambell, supra note 11, at 190.
 Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev. 615, 623 (2006).
 Richard A. Rosen, Innocence and Death, 82 N.C. L. Rev. 61, 70 n.32 (2003).
 See Duke Prosecutor is Under Heavier Fire, , http://abcnews.go.com/US/wireStory?id=2756978.
 Gary L. Wells et al., Effects of Expert Psychological Advice on Human Performance in Judging the Validity of Eyewitness Testimony, 4 Law & Hum. Behav. 275, 278 (1980).
 Confessions and interrogations are highly unreliable as well, because the results are dependent on the functioning of the human mind.
 Richard Gerrig & Philip Zimbardo, Psychology and Life 209–10 (17th ed. 2005).
 Elizabeth Loftus & Katherine Ketcham, Witness for the Defense: The Accused, the Eyewitness, and the Expert who Puts Memory on Trial 20 (1991).
 Laura Engelhardt, The Problem with Eyewitness Testimony: Commentary on a Talk by George Fisher and Barbara Tversky, 1 Stan. J. Legal Stud. 25, 27 (1999).
 Readers' Memories Of Crime Stories Influenced By Racial Stereotypes, Science Daily, May 6, 2004, http://www.sciencedaily.com/releases/2004/05/040506073047.htm.
 A “filler” is a known innocent person placed in a lineup.
 Nancy Steblay, A Meta-analytic Review of the Weapon Focus Effect, 16 Law & HUM. BEHAV. 413–24 (1992).
 See Steblay, supra note 49.
 Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475–91 (2001).
 See Singer, supra note 48.
 See Gerrig & Zimbardo, supra note 34.
 See Wells, supra note 27, at 621.
 See Manson v. Braithwaite, 432 U.S. 98, 99 (1977); Neil v. Biggers, 409 U.S. 188, 196 (1972) (noting that procedural due process governs pre-trial identification procedures); cf. Baker v. McCollan, 443 U.S. 137, 152 (1979) (suggesting that an alleged violation of procedural due process challenges the adequacy of procedures provided by the state or municipality in effecting the deprivation of liberty or property). See generally 16B Am. Jur. 2d Constit. Law § 901 (2007).
 See Palmer v. Peyton, 359 F.2d 199, 202 (4th Cir. 1966); see also Stovall v. Denno, 388 U.S. 293, 302 (1967) (finding that the defendant’s due process rights were not violated although the identification procedure was admittedly suggestive in that the suspect was brought to the hospital and was the only individual presented to the witness).
However, in United States v. Ash, 413
 See Gilbert, 388
 See Denno, 388
 See id. at 302.
v. Brathwaite, 432
 In Neil v.
Biggers, the Court determined the factors to be considered in deciding the
reliability of a suggestive identification. 409
 Seven circuit courts disagree about whether this factor should be included. The First, Fourth, Seventh, and Eighth Circuits consider other evidence of guilt; while the Second, Third, and Fifth Circuits look to the reliability of the identification itself. See Gambell, supra note 11.
 Raheem v. Kelly, 257 F.3d 122, 140 (2d Cir. 2001).
 814 F.2d 1151, 1156–57, 1161 (7th Cir. 1987).
 See Kenney, supra note 1.
 See Manson
v. Brathwaite, 432
 See id. (stating that it is fundamentally unfair to use corroborating evidence of a defendant’s guilt in any due process violation, and such evaluations should only be done in harmless error reviews).
 See Manson v. Brathwaite, 432
 See, e.g.,
Furthermore, the Manson and Biggers Courts did not consider the
degree to which human memory is susceptible to police suggestive
procedures. See Ruth Yacona, Manson v. Brathwaite: The Supreme Court’s
Misunderstanding of Eyewitness Identification, 39 J.
 Gary Wells, What is Wrong With the Manson v. Brathwaite Test of Eyewitness Identification Accuracy?, http://www.psychology.iastate.edu/faculty/gwells/Mansonproblem.pdf.
 Amy L. Bradfield,
Gary L. Wells, & Elizabeth A. Olson, The
Damaging Effect of Confirming Feedback on the Relation Between Eyewitness
Certainty and Identification Accuracy, 87 J.
Applied Psychol. 116–18 (2002).
 This is presumably from the participant’s observation of the individual in the lineup, not the individual in the event.
 Terry v.
 See Terry, 392
 See In
re Armed Robbery, 659 P.2d 1092, 1094 (
State v. Nishina, 175 N.J. 502, 510–11 (N.J. 2003) (quoting State v. Rodriguez,
172 N.J. 117, 126 (N.J. 2002) and Terry, 392
 Black’s Law Dictionary 1487 (8th ed. 2004).
 See Terry, 392
 See Golphin v. State, 838 So. 2d 705 (Fla. Dist. Ct. App. 2003) (applying a “totality of the circumstances test” to conclude that temporary retention of a suspect’s license was not a seizure when the suspect handed it over voluntarily); Piggot v. Commonwealth, 537 S.E.2d 618, 619 (Va. Ct. App. 2000) (“By retaining Piggot’s identification, [the officer] implicitly commanded [him] to stay.”); State v. Thomas, 955 P.2d 420, 423 (Wash. Ct. App. 1998) (“Once an officer retains the suspect’s identification or driver’s license and takes it with him to conduct a warrants check, a seizure within the meaning of the Fourth Amendment has occurred.”).
Cady v. Dombroski, 413
 State v. Chisholm, 696 P.2d 41, 42 (Wash. Ct. App. 1985).
 See, e.g., Iowa Code Ann. § 810.6 (West 2007). See also Vt. R. Crim. P. 41.1 (providing the authority for obtaining an NTO and requiring: 1) that there is probable cause to believe that an offense has been committed; 2) that there are reasonable grounds to suspect, or, in circumstances where constitutionally required, probable cause to believe, that the person named or described in the affidavit committed the offense; and 3) that the results of the specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense).
 See Biehunik v. Felicetta, 441 F.2d 228, 230 (2d Cir. 1971). This writer’s research revealed very little law specifically indicating the Fourth Amendment status of the suspect during a lineup. Biehunik explicitly denoted that the suspect is seized during a lineup for Fourth Amendment purposes. Other cases simply considered the issue while implying or assuming the suspect was detained or seized for Fourth Amendment purposes. See id. (“A trustworthy police force is a precondition of minimal social stability in our imperfect society. . . .”).
 See Camara v. Mun. Court, 387
 See Biehunik, 441 F.2d at 230–31.
 In part, this is why this article proposes a specified suspicion standard that is more than founded suspicion but less than probable cause before compelling an individual’s appearance in a lineup.
 See In re Armed Robbery, 659 P.2d 1092, 1094–95 (Wash. 1983) (en banc).
 Wise v. Murphy, 275 A.2d 205, 212–15 (D.C. 1971).
 U.S. Const. amend. IV.
 See Miranda v.
 State of N.J. Dep’t of Law and Public Safety on Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Apr. 18, 2001), http://www.psychology.iastate.edu/FACULTY/gwells/njguidelines.pdf; U.S Dep’t of Justice , Eyewitness Evidence: A Guide for Law Enforcement
(Oct. 1999), http://www.ncjrs.gov/pdffiles1/nij/178240.pdf); Cal. Comm’n on the Fair Admin. of Justice, Report and Recommendation Regarding Eyewitness Identification Procedures (Apr. 13, 2006), http://www.psychology.iastate.edu/faculty/gwells/California_Commission.pdf); Wis. Att’y Gen. Office, Report on Model Police and Procedure for Eyewitness Identification (Sept. 12, 2005), http://www.thejusticeproject.org/press/reports/pdfs/EyewitnessPublic.pdf .
 See Gross, supra note 15.
 See Camara v. Mun. Court, 387
 State v. Hall, 461 A.2d 1155 (N.J. 1983).
 See id. at 1160–62.
 See Bousman v. Iowa Dist. Court for Clinton County, 630 N.W.2d 789, 798 (Iowa 2001) (finding that less than probable cause is necessary for DNA testing in part because it is a valid investigatory technique).
State v. Hall, 461 A.2d 1155, 1162 (N.J. 1983) (quoting
 A show-up identification is characterized by the witness being presented with only one suspect for possible identification: no fillers are included. See supra note 13.
 See Manson v. Braithwaite, 432
Albright v. Oliver, 510
 Excluding, of course, situations in which the police may have planted the evidence on the defendant or where laboratory tests later reveal that the substance in question is not illegal.
 See Terry v.
 My research did not locate any discussion of the exclusionary rule as it applies to due process claims and the goal of deterring police misconduct.
 State v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996).
 Leon, 468
For example, in
 See Gross, supra note 15, at 542.
 Examples of other police misconduct include violations of the knock and announce rule, lack of probable cause or founded suspicion, and failure to obtain a warrant.
 Application of guidelines for lineups will serve the social mission of facilitating conviction of the guilty as well. Eyewitness testimony stemming from proper lineups with adequate safeguards will result in more frequent identifications of the guilty and stronger evidence at trial.
 Jerome H. Skolnick, Deception by Police,1(2) Crim. Justice Ethics 40 (Summer/Fall 1982).
 See Payne v. State of
There is one notable difference between the exclusionary rule as it applies to
Fourth Amendment as opposed to Fifth Amendment violations. The Self-Incrimination Clause of the Fifth
Amendment contains its own self-executing exclusionary rule. Conversely, Fourth Amendment remedies are
judicially imposed sanctions and are not derived from the text of the amendment
 A person’s right to privacy is also protected under Article 12 of the United Nations Universal Declaration of Human Rights, which states, “No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Universal Declaration of Human Rights, G.A. Res. 217A, Art. 12, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948). United Nations member countries are morally, if not legally, bound by such declarations. Certainly, misidentification qualifies as an attack upon honor or reputation. The very real threat of misidentification that accompanies an unregulated identification procedure requires legal protection under this provision.
statement is based on interviews with multiple criminal defense attorneys and
public defenders in
 See Wells, supra note 27,
at 635–36, for an example of a similar standard. Gary Wells proposes a criterion that officers
must have reasonable suspicion before placing an individual in a lineup. Wells does not suggest an exact definition of
“reasonable suspicion,” noting that it is a policy definition, not a scientific
one. However, Wells states that it
should be less than probable cause.
 A mere investigatory detention is acceptable whether or not the officer can identify the specific crime or wrongdoing in which the individual might have been engaged.
 A Fourth Amendment analysis in no way negates the necessity for a due process inquiry. For example, although the existence of probable cause may not trigger the requirement for use of the guidelines under the Fourth Amendment, the lack of the use of guidelines may result in impermissible suggestion under a due process inquiry.
 See Sarah Anne Mourer, Prophylactic Guidelines for Florida Eyewitness Identifications, (forthcoming) (on file with author).
1. The lineup must be double blind.
2. The lineup must contain a minimum of five fillers.
3. The suspect must not stand out in the lineup.
4. The fillers must reasonably resemble either the suspect or the witness’s description of the perpetrator.
5. Only one suspect must be included in the lineup.
6. The same fillers should not be reused when showing multiple lineups with different suspects to the same witness.
7. If the lineup is photographic:
a. Select a photograph of the suspect that resembles the suspect’s appearance or description at the time of the incident.
b. Ensure that no writing or information on the photographs is visible to the witness.
c. Preserve the photo array in the same condition as it was shown to the witness.
8. The lineup administrator must record both identification and/or non-identification results in writing.
9. A written statement of confidence must be taken from the witness immediately following an identification.
 Due process also requires the implementation of the above guidelines. This is a topic for a future article.
 This scenario brings to mind Miranda v. Arizona, 384 U.S. 436 (1966), and raises an inquiry as to whether officers should be required to advise citizens that they have the right to refuse to participate in a lineup in the absence of the procedural safeguards.
 See Mendenhall, 446 U.S. at 558–59 (“[A]lthough the Constitution does not require proof of knowledge of right to refuse [to consent to search] as sine qua non of an effective consent to search, such knowledge was highly relevant to determination that there had been consent.” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973)).
 See Schneckloth, 412
Courts already hold that a knowing
and intelligent waiver standard must be applied to test the waiver of counsel
at a post-indictment lineup. See id. at 240; United
States v. Wade, 388
 Fed. R. Crim. P. 5(a).
 Post-arrest identification procedures constitute an extensive topic for a later article.
 Due process should also require the implementation of the above guidelines. This is a topic for a future article.
 The vast majority of the time, in-court identifications occur where a witness on the stand scans the courtroom to identify the defendant on trial. Usually, the defendant is quite obvious.
 See Gilbert v.
Exigent circumstances are those which present the officer with an emergency
that requires immediate action. See, e.g., Schmerber v.
Nix v. Williams, 467
 See id. at 443 (involving suppression of derivative evidence and calling for a deterrence inquiry); see also United States v. Romero, 692 F.2d 699 (10th Cir. 1982) (holding that under the inevitable discovery exception to the exclusionary rule, unlawfully seized evidence is admissible if there is no doubt that police would have lawfully discovered evidence later); United States v. Strmel, 574 F. Supp. 793 (E.D. La. 1983) (finding that to fit within the inevitable discovery exception, the government must show with reasonable probability that the police would have uncovered the derivative evidence apart from the illegal actions).
However, some courts disagree that the inevitable discovery doctrine only
applies to derivative evidence. United States v. Zapata, 18 F.3d 971, 979 (1st
Cir. 1994) (“We decline to embrace the suggestion that courts should confine the
inevitable discovery rule to cases in which the disputed evidence comprises a
derivative, rather than primary, fruit of unlawful police conduct.”). See
also People v. Burola, 848 P.2d 958, 962 (
 Julie M. Giddings, The Interaction of the Standing and Inevitable Discovery Doctrines of
the Exclusionary Rule: Use of Evidence Illegally Obtained from the Defendant
and a Third Party, 91
 Conversely, it is arguable that the defendant should not unnecessarily benefit from the exclusion of eyewitness testimony by obtaining the ability to argue at trial the lack of any identification testimony. Such an argument by defense counsel may fairly “open the door” to the prosecution’s introduction of the identification evidence. It is questionable whether the mere assertion at trial by defense counsel that the defendant did not commit the crime or the defendant’s testimony that she is not the perpetrator would open the gates to the admissibility of previously excluded identification testimony. Imagine the scenario where the evidence at trial includes identification testimony from two eyewitnesses that was obtained through proper procedures. There exists also a pretrial identification from a third eyewitness that was suppressed due to lack of procedural safeguards. Shall this defendant be precluded from testifying regarding an alibi without the third witnesses’ identification testimony then becoming admissible evidence? Shall her lawyer be prohibited from the defense of misidentification without such consequences? This article hopes to spark future discussions and writings on these topics.
 See Nix, 467
 See Katz v. United States, 389 U.S. 347 (1967) (finding that what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection); see also Rawlings v. Kentucky, 448 U.S. 98 (1980) (holding that petitioner could not claim an expectation of privacy in friend’s purse).
 Citizens may expect the police to exhibit a certain degree of care and reasonableness with a photograph, even if obtained legally. The Fourth Amendment may also require that the police utilize guidelines and safeguards with lineups involving photographs of individuals that may have been taken without initially implicating the Fourth Amendment. However, there are different implications involved with the use of a photo array, and this is a fertile issue for a future article. This issue is by no means clear.
Commonwealth v. Johnson, 650 N.E. 2d 1257, 1262 (
 See Gross, supra note 15.
 See Neil v. Biggers, 409
Union Pac. Ry. Co. v. Botsford, 141