Types of Identification Procedures
The show-up has long been considered the most suggestive form of identification procedure. In a show-up, the police confront the witness one-on-one with the suspect to determine if the witness can identify the suspect as the perpetrator. Police employ this method when they make an arrest, usually soon after the crime, and need to decide whether to continue to hold the suspect or to look further.
The photo array
Displays of photographs can occur in different ways. The police may:
- Have the witness look through a book of arrest photographs (i.e., “mug shots”).
- Arrange the photographs similar to a line-up, trying to select photographs that resemble each other to avoid suggestiveness.
The police may have several individuals, usually five or six, sit or stand next to each other and have the witness look at them, usually through a one-way mirror.
Constitutional restrictions on procedures
The United States Constitution places some restrictions on pre-trial identification:
- The Due Process Clause prohibits unduly suggestive identification procedures.
- Once adversary proceedings have begun, a defendant has a Sixth Amendment right to have counsel present at an in-person identification procedure.
Due process protection
The Supreme Court has established a rule that a government identification procedure violates due process when it is unnecessarily suggestive and creates a substantial risk of misidentification. The first part of this standard requires a court to ask both whether the procedure was suggestive and whether the government had a justification for its failure to use a less suggestive identification procedure. The second part of the standard is whether the procedure was so conducive to mistaken identification or gave rise to such a substantial likelihood of misidentification that admitting the identification would be a denial of due process. Under both federal law and the law of all states except Massachusetts, New York, and Wisconsin, even if an identification procedure is proven to be unduly suggestive, the government gets a second opportunity to admit both the in-court and out-of-court identifications if it can prove that “under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” The court must examine the following factors:
- The opportunity of the witness to view the perpetrator at the time of the crime.
- The witness’s degree of attention.
- The accuracy of the witness’s prior description of the perpetrator.
- The level of certainty demonstrated at the confrontation
- The time between the crime and the confrontation.
The court must weigh the corrupting effect of the suggestive identification itself against these factors. In Massachusetts and New York, once a pre-trial identification procedure is shown to be unnecessarily suggestive, the pre-trial identification is automatically excluded, and the burden shifts to the prosecution to show an independent source for admitting the in-court identification under the factors set forth above. Wisconsin excludes any out-of-court show-up identification unless the prosecution shows that it was necessary under the totality of the circumstances. The prosecution also must prove that any in-court identification following the improper show-up is based on an independent source.