Defending Your Lineup in Court

Previously on Officer.com.

Last month in The Hot Debate on Police Lineups we looked at how courts, cops, prosecutors, defense attorneys, politicians, and researchers are all weighing in on what constitutes “best practices” for police lineups. (web link below) The heightened scrutiny has been sparked by:

High profile DNA exonerations.

1. The fact that mis-identification by eyewitnesses was the leading cause of more than 75% of the wrongful convictions brought to light.
2. Research into what lineup practices increase the reliability of eyewitness IDs.

Research is continuing because, to date, some disagreement remains. Nevertheless officers can expect, and must be prepared for, cross examination on their lineup procedures. That’s the purpose of this article.

Currently endorsed practices.

The U.S. Department of Justice has two publications for law enforcement on how to gather eyewitness evidence: (web links below)

• Eyewitness Evidence – A Guide for Law Enforcement
• Eyewitness Evidence – A Trainer’s Manual for Law Enforcement

These manuals are based on the recommendations of the Technical Working Group for Eyewitness Evidence which included psychology professors, chiefs of police, defense attorneys, prosecutors and others. They represent an effort to unite what psychologists have learned about memory with the practical needs of law enforcement to use eyewitness evidence as an investigative tool.

The American Bar Association, police groups and state commissions have issued their own best practices. Examples include: (some web links below)

• In 2004, the American Bar Association issued its Best Practices for Promoting Accuracy of Eyewitness Identification Procedures.
• In 2009, the Commission on Accreditation for Law Enforcement Agencies (CALEA) adopted two new standards (42.2.11 and 42.2.12) addressing eyewitness identification.
• The IACP revised its model policy on eyewitness identification in September 2010 to take the latest research into account.
• Wisconsin Model Policy and Procedure for Eyewitness Identification.
• New Jersey Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures.

Police agencies that do not have written policies are coming under scrutiny and criticism. State legislatures have stepped in to require law enforcement to develop written policies and procedures. (web links below to Texas)

Best practices MAY include, but are not limited to:

• Avoiding “showups” (aka field identifications – showing suspect to witness in close proximity to and time of the crime) whenever possible in favor of photo or subject lineups. If a showup is necessary, following strict guidelines such as those in the IACP model policy.
• Replacing simultaneous lineups with sequential lineups. In simultaneous lineups the witness views all the people or photos at the same time. In sequential lineups, people or photos are presented one at a time. Some research claims that in simultaneous lineups witnesses compare photos or subjects to each other rather than to their memory of the offender. When the real perpetrator isn’t present, the witness will often choose the subject who most closely resembles the offender. In comparison, sequential lineups have the witness compare each subject to their memory of the offender.
• Using blind administrators who do not know the identity of the suspect to avoid any inadvertent suggestibility.
• Informing the witness the administrator does not know the suspect and the suspect may not be in the lineup.
• Adhering to specific guidelines regarding the composition of the lineup – number, similarity in features, placement of suspect, type of photo, etc.
• Separating eyewitnesses and placing the suspect photo or subject in a different position in each lineup.
• Obtaining a statement of degree of confidence by the witness at the time of the lineup identification. Some research indicates witness confidence may be increased by the mere fact of learning they “correctly” identified the suspect. Such change in confidence can inflate their perceived recollection of the actual event, i.e., they will now recall seeing the suspect better; getting a better, longer look.

I qualify the above with “MAY” because in a circumspect, if minority view, three prosecutors wrote just last month in Police Chief Magazine,

“Recent laboratory research on sequential lineups shows no sequential advantage.”

They then provide an excellent discussion of the contrary research. (web link below) Other research indicates that an eyewitness’ degree of confidence is not a reliable indicator of his accuracy and defense attorneys are requesting jury instructions to that effect. (web link below)

Defending your lineup in court.

If your agency doesn’t have policies on how to collect and preserve eyewitness evidence or you haven’t been trained in or didn’t use best practices recognized and adopted by other law enforcement organizations, prepare for that evidence to be attacked by the defense in a number of ways: (web link below)

• Pretrial motions to suppress that argue the eyewitness identification is the product of faulty procedures that undermine its reliability and therefore violates the defendant’s 14^th Amendment due process rights.
• Cross examination on the lack of any formalized practices or on improper practices for collecting eyewitness evidence.
• Cross examination to establish the unreliability of the improper techniques used.
• Cross examination on your lack of training in proper techniques of collecting eyewitness evidence.
• Expert testimony to educate the jury on memory and perception and how your improper techniques contributed to the unreliability of the eyewitness identification.
• Using your cross examination and the defense expert testimony on appeal to persuade an appellate court to adopt the recent research as the new standard for reliability and admissibility.

In fact, defense attorneys across the country have been conferencing and training on just how to attack your lineups. (web link below)

As more states adopt new practices or police agencies voluntarily assume them, prepare for defense attorneys to pit law enforcement agencies against each other. Expect to be cross examined regarding the use of such practices by other agencies and their recommended use by the DOJ, the IACP, the American Bar Association, etc.

If you do not use the blind sequential method, make sure that is a conscious, informed decision – not just a failure to be familiar with current research. Be prepared to back that decision with testimony regarding the research that shows this practice has no advantage. Also be prepared to answer whether this is a minority view among police agencies that have adopted policies regarding lineups.

Jurors.

Juror reactions to lineup procedures testimony should also be considered. A study conducted on the reactions of mock jurors to the Department of Justice Guidelines for the Collection and Preservation of Eyewitness Evidence concluded that failure to follow the recommended guidelines for conducting lineups could result in fewer convictions. (web link below)

If you’re not following DOJ’s guidelines, the prosecutor should be made aware of this study so she can address its implications during jury selection and the government’s case. Moreover, defense attorneys are being urged to request a jury instruction addressing the police’s failure to follow standard eyewitness practices and some courts are giving it. (web link below) 

The best defense is an offense.

The best way to defend your eyewitness evidence is before you ever go to trial. Law enforcement agencies must have written policies for conducting lineups that are supported by the research. Plenty of models are provided in this article.

Officers need to be trained in the policies and the research behind them and ensure their investigations comply with the policies. Officers should also be prepared to articulate in court how the procedures they used ensure the greatest reliability of the eyewitness evidence gathered. Preferably this preparation would be included in the training on the policies themselves. At a minimum, officers need to discuss this area of testimony with their prosecutors prior to testifying.

Heed the advice of Michael Barasse, a former district attorney and current judge who was one of one of the dozens of law enforcement officials and social scientists who helped craft the Justice Department guidelines. In 2005, Barasse said that police departments should implement the guidelines before a savvy defense attorney uses them to dismantle one of their cases or before someone who was wrongfully convicted uses the guidelines to sue their department. (last web link below)

Next month we’ll delve into Barasse’s forewarned specter of civil litigation and look at how police lineups may be a new frontier in failure to train litigation.

Web Links:

• The Hot Debate on Police Lineups
• Eyewitness Evidence – A Guide for Law Enforcement (requires Acrobat reader)
• Eyewitness Evidence – A Trainer’s Manual for Law Enforcement (requires Acrobat reader)
• New IACP Policies
• Wisconsin Model Policy and Procedure for Eyewitness Identification (requires Acrobat reader)
• NJ Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (requires Acrobat reader)
• Study: 88% of Texas police and sheriffs have no written policy on eyewitness ID procedures; even fewer follow best practices
• Texas moving forward with police lineup rules
• Eyewitness Identification: What Chiefs Need to Know Now
• Jury Instructions for Winning Criminal Cases
• Trying Identification Cases: An outline for raising eyewitness ID issues
• Two stories of eyewitness error
• Litigating Eyewitness Identification Cases in the 21st Century Seminar
• The Reactions of Mock Jurors to the Department of Justice Guidelines for the Collection and Preservation of Eyewitness Evidence (requires Acrobat reader)
• Jury Instruction – Omissions in Police Investigations (requires Acrobat reader)
• Most Local Police Unaware of Witness Guidelines

About The Author:

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is an internationally sought speaker, trainer and noted author. She combines a dynamic presentation style with over 10 years experience as a prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Visit her website: www.valvanbrocklin.com