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 Boston
City Hospital
where Kathleen Whiteside had just identified her husband’s body. She had been administered sedatives twice
already, but she was still hysterical. She
had been present at her husband’s murder, held at gunpoint by the assailant,
and looked the perpetrator in the face for at least three minutes. The
police presented only Bobby Joe to her, in handcuffs, asking, “Is this
him?” She identified him. He spent 15 years in prison as a result.
The prosecutor did have
corroborating evidence against Bobby Joe.
At a grand jury hearing, a witness from the store also identified Bobby
Joe. Further,
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 Boston schoolteacher saw a
photograph of Bobby Joe in a magazine article and knew that he had been
wrongfully convicted. The schoolteacher
had been near the scene moments after the murder and had seen two men fleeing,
neither of whom were Bobby Joe. Bobby
Joe was exonerated after spending 16 years in prison, from 1970 to 1986.
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 Simmons Court
focused on whether or not the identification of the suspect was correct, rather
than necessary.
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
suggestive. If
so, a court must ascertain whether, under the totality of the circumstances,
the suggestive procedure gave rise to a substantial likelihood of irreparable
misidentification. The
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
identification. The
Manson Court declared, “We therefore
conclude that reliability is the linchpin in determining the admissibility of
identification testimony. . . .”
What the Court meant by “reliability” is that the surrounding
circumstances provide strong indicia of the accuracy of the identification. However, it is not realistic to try to
formulate a test that attempts to assess the likelihood that a flawed lineup is
correct. If one could assess this,
courts would admit identifications that identify the guilty and exclude
misidentifications.
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.
Some
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 United States ex rel. Kosik v. Napoli,
the court found the identification reliable in part because the defendant was
shown to have been driving the getaway car.
Bobby Joe Leaster spent 15 years in prison in large part due to
corroborating evidence of guilt. According to Justice Marshall, “By importing
the question of guilt into the initial determination of whether there was a
constitutional violation, the apparent effect of the Court’s decision is to
undermine the protection afforded by the Due Process Clause.” Consideration of evidence of guilt should
only take place in harmless error reviews—not due process reviews.
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 District of Columbia Circuit upheld the
compelled appearance of an individual in a lineup on less than probable cause.
Neither court considered the risk of bias and error associated with
lineups as relevant to the Fourth Amendment inquiry.
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 Davis,
stated:
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:
Indeed,
the Supreme Court in Davis observed
that ‘abuses’ can occur in an investigatory detention, mentioning specifically
an ‘improper lineup.’ As a result, in
order to guarantee that the detention and accompanying intrusion is not
improper or abusive, it must be accomplished in a fashion designed to produce
the least amount of harassment of, interference with, or prejudice to the suspect.
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
reflected in Davis,
the reliability of police investigatory procedures triggers Fourth
Amendment concerns. Therefore, guidelines that maximize the
reliability of lineups are important under the Fourth Amendment.
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.
VIII. Exceptions
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.
X. Conclusion
Studies confirm that unregulated eyewitness testimony is often
“hopelessly unreliable.” Misidentifications are the greatest single
source of wrongful convictions in the United States. Courts
have historically recognized that the risks and hazards associated with
unregulated lineups implicate procedural due process concerns. Yet
courts’ current due process analyses are unsuccessful in ensuring fair lineup
procedures and preventing wrongful convictions.
A due process analysis alone is inadequate, in part because a due
process analysis is essentially a fairness inquiry, and courts regard it as
unfair to exclude a correct, yet suggestive identification, from evidence. On the other hand, the exclusionary rule, as
it applies to the Fourth Amendment, functions to regulate police procedures and
conduct. Therefore,
a Fourth Amendment analysis of suggestive identification procedures will result
in exclusion of eyewitness testimony stemming from identification procedures
that are unreasonable seizures, whether or not the resulting identifications are
likely to be correct. Compelled identification procedures that are unregulated
require exclusion under the Fourth Amendment.
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.
See Manson
v. Braithwaite, 432 U.S.
98, 107 (1977).
See Samuel
R. Gross et al., Exonerations in the
United States 1989 through 2003, 95
J. Crim. L. & Criminology 523,
542 (2005).
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).
See
Gambell, supra note 11, at 190.
See Aaron Beard, Duke Prosecutor is Under Heavier Fire, Associated Press, Dec. 28, 2006,
http://abcnews.go.com/US/wireStory?id=2756978.
Readers' Memories Of Crime Stories
Influenced By Racial Stereotypes, Science
Daily, May 6, 2004,
http://www.sciencedaily.com/releases/2004/05/040506073047.htm.
See Tom
Singer, To Tell the Truth, Memory Isn’t
that Good, 63 Mont. L. Rev.
337, 360 (2002).
Nancy Steblay, A Meta-analytic
Review of the Weapon Focus Effect, 16 Law
& HUM. BEHAV. 413–24 (1992).
Thomas H. Kramer, Robert Buckhout
& Paul Eugenio, Weapon Focus, Arousal, and Eyewitness Memory: Attention
Must be Paid, 14 Law & Hum.
Behav. 167–84 (1990).
See Kramer
et al., supra note 50.
Bruce W.
Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An
Archival Analysis, 25 Law
& Hum. Behav. 475–91 (2001).
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).
Id. In Manson,
an undercover police officer named Jimmy purchased narcotics from the seller
and subsequently gave a description of the seller to another officer. This other officer later left a single
photograph of the defendant on Jimmy’s desk. Jimmy identified the defendant as the
seller.
In Neil v.
Biggers, the Court determined the factors to be considered in deciding the
reliability of a suggestive identification. 409 U.S. 188, 199 (1972). In Biggers, the Court admitted the
identification of a suspect based upon the presentation of a single photograph to the witness. It held that although presentation of only
one photograph might be suggestive, it did not give rise to substantial
likelihood of irreparable misidentification.
Raheem v. Kelly, 257 F.3d 122, 140 (2d Cir. 2001).
814 F.2d 1151, 1156–57, 1161 (7th Cir. 1987).
See Manson
v. Brathwaite, 432 U.S.
98, 128 (1977) (Marshall, J., dissenting).
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).
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.
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.
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 Iowa L. Rev. 1063 (2006). See
also Nix v. Williams, 467 U.S.
431, 443 (1984).
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.
