Section 6.2: Eyewitness Identification
The legal system always has relied on the testimony of eyewitnesses, nowhere more than in criminal cases. Although the evidence eyewitnesses provide can be tremendously helpful in developing leads, identifying criminals, and exonerating the innocent, this evidence is not infallible. Even honest and well-meaning witnesses can make errors, such as identifying the wrong person or failing to identify the perpetrator of a crime.
To their credit, the legal system and law enforcement agencies have not overlooked this problem. Numerous courts and rulemaking bodies have, at various times, designed and instituted special procedures to guard against eyewitness mistakes. Most State and local law enforcement agencies have established their own policies, practices, and training protocols with regard to the collection and handling of eyewitness evidence, many of which are quite good.
Dispatch Procedures
Assure the caller the police are on the way. Ask open-ended questions (e.g., “What can you tell me about the car?”); augment with closed-ended questions (e.g., “What color was the car?”). Avoid asking suggestive or leading questions (e.g., “Was the car red?”). Ask if anything else should be known about the incident. Transmit information to the responding officer(s). Update officer(s) as more information comes in.
First Responder Procedures
Identify the perpetrator(s). Determine the location of the perpetrator(s). Detain or arrest the perpetrator(s) if still present at the scene. Determine/classify what crime or incident has occurred. Broadcast an updated description of the incident, perpetrator(s), and/or vehicle(s). Verify the identity of the witness(es). Separate witnesses and instruct them to avoid discussing details of the incident with other witnesses. Canvass the area for other witnesses. Summary: The preliminary investigation at the scene forms a sound basis for the accurate collection of information and evidence during the follow-up investigation.
Establish rapport with the witness. Inquire about the witness’ condition. Use open-ended questions (e.g., “What can you tell me about the car?”); augment with closed-ended questions (e.g., “What color was the car?”). Avoid leading questions (e.g., “Was the car red?”). 4. Clarify the information received with the witness. Document information obtained from the witness, including the witness’ identity, in a written report. Encourage the witness to contact investigators with any further information.
Encourage the witness to avoid contact with the media or exposure to media accounts concerning the incident. Instruct the witness to avoid discussing details of the incident with other potential witnesses.
Mug Books
“Mug books” (i.e., collections of photos of previously arrested persons) may be used in cases in which a suspect has not yet been determined and other reliable sources have been exhausted. This technique may provide investigative leads, but results should be evaluated with caution.
In selecting photos to be preserved in a mug book, the preparer should group photos by format (e.g., color or black and white; Polaroid, 35 mm, or digital; video) to ensure that no photo unduly stands out. Select photos of individuals that are uniform with regard to general physical characteristics (e.g., race, age, sex).
Consider grouping photos by specific crime (e.g., sexual assault, gang activity). Ensure that positive identifying information exists for all individuals portrayed. Ensure that photos are reasonably contemporary. Ensure that only one photo of each individual is in the mug book.
In composing a photo lineup, the investigator should: Include only one suspect in each identification procedure. Select fillers who generally fit the witness’ description of the perpetrator. When there is a limited/inadequate description of the perpetrator provided by the witness, or when the description of the perpetrator differs significantly from the appearance of the suspect, fillers should resemble the suspect in significant features. If multiple photos of the suspect are reasonably available to the investigator, select a photo that resembles the suspect description or appearance at the time of the incident.
Include a minimum of five fillers (nonsuspects) per identification procedure. Consider that complete uniformity of features is not required. Avoid using fillers who so closely resemble the suspect that a person familiar with the suspect might find it difficult to distinguish the suspect from the fillers. Create a consistent appearance between the suspect and fillers with respect to any unique or unusual feature (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature.
Consider placing suspects in different positions in each lineup, both across cases and with multiple witnesses in the same case. Position the suspect randomly in the lineup. When showing a new suspect, avoid reusing fillers in lineups shown to the same witness. Ensure that no writings or information concerning previous arrest(s) will be visible to the witness. View the spread, once completed, to ensure that the suspect does not unduly stand out. Preserve the presentation order of the photo lineup. In addition, the photos themselves should be preserved in their original condition.
Composite Images
Composite images can be beneficial investigative tools; however, they should not be used as stand-alone evidence and may not rise to the level of probable cause.
The person preparing the composite should: 1. Assess the ability of the witness to provide a description of the perpetrator. 2. Select the procedure to be used from those available (e.g., artist, kit, computer-generated images).
Unless part of the procedure, avoid showing the witness any photos immediately prior to the development of the composite. Select an environment for conducting the procedure that minimizes distractions. Conduct the procedure with each witness separately. Determine with the witness whether the composite is a reasonable representation of the perpetrator.
The use of composite images can yield investigative leads in cases in which no suspect has been determined. Use of these procedures can facilitate obtaining from the witness a description that will enable the development of a reasonable likeness of the perpetrator.
Instructing Witnesses & Documentation
Instructions to the witness prior to conducting the procedure can facilitate the witness’ recollection of the perpetrator.
An investigator conducting a mug book examination by a witness should provide some basic instructions. The investigator/person conducting the procedure should: Instruct each witness without other persons present. Describe the mug book to the witness only as a “collection of photographs.” Instruct the witness that the person who committed the crime may or may not be present in the mug book.
Consider suggesting to the witness to think back to the event and his/her frame of mind at the time. Instruct the witness to select a photograph if he/she can and to state how he/she knows the person if he/she can. Assure the witness that regardless of whether he/she makes an identification, the police will continue to investigate the case. Instruct the witness that the procedure requires the investigator to ask the witness to state, in his/her own words, how certain he/she is of any identification.
An investigator developing a composite should provide the witness with some basic instructions. The investigator/person conducting the procedure should: Instruct each witness without other persons present. Explain the type of composite technique to be used. Explain to the witness how the composite will be used in the investigation. Instruct the witness to think back to the event and his/her frame of mind at the time.
Documentation of the procedure provides an accurate record of the results obtained from the witness. The person conducting the procedure should:
Document the procedure employed (e.g., identikit-type, mug book, artist, or computer-generated image) in writing. Document the results of the procedure in writing, including the witness’ own words regarding how certain he/she is of any identification. 3. Document items used and preserve composites generated.
Documentation of the procedure and its outcome improves the strength and credibility of the results obtained from the witness and can be an important factor in the investigation and any subsequent court proceedings.
Showups
When circumstances require the prompt display of a single suspect to a witness, the inherent suggestiveness of the encounter can be minimized through the use of procedural safeguards. The investigator shall employ procedures that avoid prejudicing the witness.
When conducting a showup, the investigator should: Determine and document, prior to the showup, a description of the perpetrator. Consider transporting the witness to the location of the detained suspect to limit the legal impact of the suspect’s detention. When multiple witnesses are involved: Separate witnesses and instruct them to avoid discussing details of the incident with other witnesses. If a positive identification is obtained from one witness, consider using other identification procedures (e.g., lineup, photo array) for remaining witnesses. Caution the witness that the person he/she is looking at may or may not be the perpetrator. Obtain and document a statement of certainty for both identifications and nonidentifications. The use of a showup can provide investigative information at an early stage, but the inherent suggestiveness of a showup requires careful use of procedural safeguards.
The record of the outcome of the field identification procedure accurately and completely reflects the identifcation results obtained from the witness. When conducting a showup, the investigator should: Document the time and location of the procedure. Record both identification and nonidentification results in writing, including the witness’ own words regarding how certain he/she is.
Preparing a complete and accurate record of the outcome of the showup improves the strength and credibility of the identification or nonidentification results obtained from the witness and can be a critical document in the investigation and any subsequent court proceedings.
Lineups
Fair composition of a lineup enables the witness to provide a more accurate identification or nonidentification.
In composing a live lineup, the investigator should: Include only one suspect in each identification procedure. Select fillers who generally fit the witness’ description of the perpetrator. When there is a limited/inadequate description of the perpetrator provided by the witness, or when the description of the perpetrator differs significantly from the appearance of the suspect, fillers should resemble the suspect in significant features. Consider placing suspects in different positions in each lineup, both across cases and with multiple witnesses in the same case. Position the suspect randomly unless, where local practice allows, the suspect or the suspect’s attorney requests a particular position. Include a minimum of four fillers (nonsuspects) per identification procedure. When showing a new suspect, avoid reusing fillers in lineups shown to the same witness.
Consider that complete uniformity of features is not required. Avoid using fillers who so closely resemble the suspect that a person familiar with the suspect might find it difficult to distinguish the suspect from the fillers. Create a consistent appearance between the suspect and fillers with respect to any unique or unusual feature (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature.
The above procedures will result in a photo or live lineup in which the suspect does not unduly stand out. An identification obtained through a lineup composed in this manner may have stronger evidentiary value than one obtained without these procedures.
Instructions given to the witness prior to viewing a lineup can facilitate an identification or nonidentification based on his/her own memory. Prior to presenting a photo lineup, the investigator should:
Instruct the witness that he/she will be asked to view a set of photographs. Instructing the Witness Prior to Viewing a Lineup Instruct the witness that it is just as important to clear innocent persons from suspicion as to identify guilty parties. Instruct the witness that individuals depicted in lineup photos may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. Instruct the witness that the person who committed the crime may or may not be in the set of photographs being presented. Assure the witness that regardless of whether an identification is made, the police will continue to investigate the incident. Instruct the witness that the procedure requires the investigator to ask the witness to state, in his/her own words, how certain he/she is of any identification.
Prior to presenting a live lineup, the investigator should: Instruct the witness that he/she will be asked to view a group of individuals. Instruct the witness that it is just as important to clear innocent persons from suspicion as to identify guilty parties. Instruct the witness that individuals present in the lineup may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. Instruct the witness that the person who committed the crime may or may not be present in the group of individuals. Assure the witness that regardless of whether an identification is made, the police will continue to investigate the incident. Instruct the witness that the procedure requires the investigator to ask the witness to state, in his/her own words, how certain he/she is of any identification.
Instructions provided to the witness prior to presentation of a lineup will likely improve the accuracy and reliability of any identification obtained from the witness and can facilitate the elimination of innocent parties from the investigation.
The identification procedure should be conducted in a manner that promotes the reliability, fairness, and objectivity of the witness’ identification. When presenting a simultaneous photo lineup, the investigator should: Confirm that the witness understands the nature of the lineup procedure. void saying anything to the witness that may influence the witness’ selection. If an identification is made, avoid reporting to the witness any information regarding the individual he/she has selected prior to obtaining the witness’ statement of certainty. Record any identification results and witness’ statement of certainty.
Document in writing the photo lineup procedures, including: Identification information and sources of all photos used. Names of all persons present at the photo lineup. Date and time of the identification procedure. Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.
When presenting a sequential photo lineup, the investigator should: Provide viewing instructions to the witness. Provide the following additional viewing instructions to the witness: Individual photographs will be viewed one at a time. The photos are in random order. Take as much time as needed in making a decision about each photo before moving to the next one. All photos will be shown, even if an identification is made; or the procedure will be stopped at the point of an identification (consistent with jurisdictional/departmental procedures). Confirm that the witness understands the nature of the sequential procedure. Present each photo to the witness separately, in a previously determined order, removing those previously shown. Avoid saying anything to the witness that may influence the witness’ selection.
f an identification is made, avoid reporting to the witness any information regarding the individual he/she has selected prior to obtaining the witness’ statement of certainty. Record any identification results and witness’ statement of certainty as outlined in subsection D, “Recording Identification Results.” Document in writing the photo lineup procedures, including: Identification information and sources of all photos used. Names of all persons present at the photo lineup. Date and time of the identification procedure. Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.
When presenting a simultaneous live lineup, the investigator/lineup administrator should: Provide viewing instructions to the witness. Instruct all those present at the lineup not to suggest in any way the position or identity of the suspect in the lineup. Ensure that any identification actions (e.g., speaking, moving) are performed by all members of the lineup. Avoid saying anything to the witness that may influence the witness’ selection. If an identification is made, avoid reporting to the witness any information regarding the individual he/she has selected prior to obtaining the witness’ statement of certainty.
Record any identification results and witness’ statement of certainty. Document the lineup in writing, including: Identification information of lineup participants. Names of all persons present at the lineup. Date and time the identification procedure was conducted. Document the lineup by photo or video. This documentation should be of a quality that represents the lineup clearly and fairly. Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.
When presenting a sequential live lineup, the lineup administrator/investigator should: Provide viewing instructions to the witness. Provide the following additional viewing instructions to the witness: Individuals will be viewed one at a time. The individuals will be presented in random order. Take as much time as needed in making a decision about each individual before moving to the next one. If the person who committed the crime is present, identify him/her. All individuals will be presented, even if an identification is made; or the procedure will be stopped at the point of an identification (consistent with jurisdictional/departmental procedures).
Begin with all lineup participants out of the view of the witness. Instruct all those present at the lineup not to suggest in any way the position or identity of the suspect in the lineup. Present each individual to the witness separately, in a previously determined order, removing those previously shown. Ensure that any identification actions (e.g., speaking, moving) are performed by all members of the lineup. Avoid saying anything to the witness that may influence the witness’ selection. If an identification is made, avoid reporting to the witness any information regarding the individual he/she has selected prior to obtaining the witness’ statement of certainty.
Record any identification results and witness’ statement of certainty. Document the lineup procedures and content in writing, including: Identification information of lineup participants. Names of all persons present at the lineup. Date and time the identification procedure was conducted. Document the lineup by photo or video. This documentation should be of a quality that represents the lineup clearly and fairly. Photo documentation can be of either the group or each individual. Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.
Preparing a complete and accurate record of the outcome of the identification procedure improves the strength and credibility of the identification or nonidentification results obtained from the witness. This record can be a critical document in the investigation and any subsequent court proceedings.
References and Further Reading
National Institute of Justice. (1999). Eyewitness Evidence: A Guide for Law Enforcement. Available: https://www.ncjrs.gov/pdffiles1/nij/178240.pdf
Modification History File Created: 05/02/2019 Last Modified: 04/30/2021
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
