Eyewitness testimony is powerful evidence. Because eyewitness testimony can be so influential, courts have established strict guidelines that must be followed when police conduct a lineup to identify a suspect and when prosecutors seek to admit eyewitness testimony into evidence.
A police lineup can be conducted as a live lineup when the suspect and other people stand in a group against a wall or through photo identification. Police lineups involve placing a suspect within a group of other people (“fillers”) who have nothing to do with the crime. The eyewitness is then asked to identify the suspect.
Live lineups and photograph identification can be performed simultaneously or sequentially. In a sequential lineup, the eyewitness looks at individuals or photographs one at a time. In a simultaneous identification, the eyewitness is shown multiple potential suspects or photographs of suspects at the same time and asked to make an identification.
Eyewitness identification can make for compelling testimony. Yet there are numerous problems with the way police lineups are conducted that can make them unreliable. Police may intentionally or inadvertently give the witness signals to identify the suspect. Other times, the other people in the lineup look nothing like the description provided by the witness. Finally, a witness may feel pressure to identify someone in a lineup.
To combat these problems, courts have identified a suspect’s rights during a police lineup. A criminal defense attorney can protect the suspect's rights both during the lineup and in court.
Because eyewitness identification is such a powerful tool, suspects are afforded certain rights during a police lineup.
When a suspect is asked to participate in a lineup, he has the right to an attorney. The right to an attorney arises as soon as a person is suspected of a crime and applies when a person is being asked to participate in a live lineup. A suspect does not have a right to an attorney during a photo identification.
If a suspect has an attorney but the attorney was not present during the lineup, the suspect can seek to have the results of the lineup suppressed and not included as evidence in the case.
Having a lawyer present during a lineup prevents police officer bias or other improper procedures and ensures that the suspect’s rights are not violated.
Criminal suspects have the right to be free from an identification process that is unnecessarily suggestive. If law enforcement pressures a witness to identify someone in a lineup, the suspect’s rights may have been violated.
If a suspect participates in a lineup, he has the right to a lineup that is free from a substantial likelihood of misidentification. A substantial risk of misidentification occurs if all other suspects in the lineup look different from the description provided by the witness.
If a criminal defendant’s rights were violated during a police lineup, the defendant can seek to suppress the eyewitness identification or ask for a jury instruction that addresses the unreliability of police lineup procedures.
If a suspect’s rights have been violated during a lineup, the suspect’s lawyer can seek to have evidence of the eyewitness identification excluded from trial. The suspect’s lawyer will file a motion to suppress evidence, and the suspect may be asked to testify before the judge about what occurred during the lineup. If the motion to suppress is successful, evidence of the eyewitness identification will be excluded.
If eyewitness identification played a significant role in the case, a defense attorney may consider including a jury instruction that addresses how unreliable eyewitness identification can be. Jury instructions are important in any criminal case because they tell the jury what information they are to use to decide the case. They are also the last thing the jury hears before they begin deliberations.
According to the Innocence Project, mistaken eyewitness identifications have contributed to 69% of the more than 375 wrongful convictions in the United States that were overturned by post-conviction DNA evidence.
To improve the reliability of police lineups, the Innocence Project suggests the following reforms that have been adopted by 25 states, including Michigan:
To avoid unnecessary suggestion, the administrator conducting the lineup should not know who the suspect is. This prevents the administrator from making inadvertent or intentional cues that could influence the eyewitness to identify a particular suspect.
The lineup administrator should issue instructions that prevent the eyewitness from feeling pressured to make an identification. One recommended instruction indicates that the suspect may or may not be present in the lineup. This instruction also lessens the likelihood that the eyewitness will look to the administrator for cues to identify a particular suspect.
Care should be taken so that photographs and fillers are selected so the suspect does not stand out from the other members of the lineup. Police should select fillers using an approach that considers the fillers' resemblance to the suspect and the description provided by the eyewitness to the police.
Immediately after completing a lineup identification, the eyewitness should provide a statement, in his own words, that indicates the level of confidence he has in his selection.
The eyewitness identification process should be recorded electronically.
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