11

Chapter 13Chapter 13

The Law Governing The Law Governing

Identification EvidenceIdentification Evidence

22

Evidence Needed to Convict of Evidence Needed to Convict of a Crimea Crime

To convict a person of a crime, the To convict a person of a crime, the government must prove:government must prove:That the crime charged did occur That the crime charged did occur (proof of (proof of corpus delicticorpus delicti))

That the defendant committed or That the defendant committed or was a party to the crime chargedwas a party to the crime charged

33

Identification of the defendant as Identification of the defendant as the person who committed or the person who committed or was a party to the crime must be was a party to the crime must be made in all criminal cases. made in all criminal cases.

This can be done by This can be done by direct ordirect or circumstantial evidence, or a circumstantial evidence, or a combination of both direct combination of both direct and circumstantial evidenceand circumstantial evidence..

Evidence Needed to Convict of Evidence Needed to Convict of a Crime (Cont.)a Crime (Cont.)

44

The Problem of Mistaken The Problem of Mistaken Eyewitness IdentificationEyewitness Identification

This can happen because our memories are This can happen because our memories are not like video cameras, neither capturing nor not like video cameras, neither capturing nor retaining details.retaining details.

Studies have found eyewitness identification Studies have found eyewitness identification is less reliable when the witness is a is less reliable when the witness is a different race than the person identified.different race than the person identified.

Many innocent persons are mistakenly Many innocent persons are mistakenly charged or convicted based on mistaken charged or convicted based on mistaken identification.identification.

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The 2008 Study of Innocent The 2008 Study of Innocent Persons Mistakenly Persons Mistakenly

IncarceratedIncarcerated DNA evidence cleared the 200DNA evidence cleared the 200thth innocent innocent

person mistakenly convicted in 2007.person mistakenly convicted in 2007. Statistics involving mistakes include:Statistics involving mistakes include:

12 years average served in prison12 years average served in prison 79% the result of mistaken eyewitness ID79% the result of mistaken eyewitness ID 55% the result of faulty forensic evidence55% the result of faulty forensic evidence 18% involved testimony of police informants18% involved testimony of police informants 16% false confessions admitted at trial16% false confessions admitted at trial

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2008 Study (Cont.)2008 Study (Cont.)

More than 90% of those exonerated by More than 90% of those exonerated by DNA were convicted of rape, murder, or DNA were convicted of rape, murder, or both. DNA is often available in these both. DNA is often available in these crimes of violence because there is usually crimes of violence because there is usually hair or bodily fluids left at the crime scene.hair or bodily fluids left at the crime scene.

DNA testing and evidence is available in DNA testing and evidence is available in less than 10% of violent crimes.less than 10% of violent crimes.

Over 75,000 persons annually are brought Over 75,000 persons annually are brought to trial in the U.S. based on eyewitness to trial in the U.S. based on eyewitness identification.identification.

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What is Being Done About the What is Being Done About the Problem of Convicting Innocent Problem of Convicting Innocent

Persons?Persons? When the innocent are convicted, guilty When the innocent are convicted, guilty

individuals are free to commit more crime.individuals are free to commit more crime. Some steps to lessen mistakes have been Some steps to lessen mistakes have been

suggested. They include:suggested. They include: Police need to be cautious about use of Police need to be cautious about use of

eyewitness identification.eyewitness identification. Prosecution needs to screen cases thoroughly.Prosecution needs to screen cases thoroughly. Judges, prosecution, and juries need to Judges, prosecution, and juries need to

demand higher burdens of proof.demand higher burdens of proof.

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Suggested Corrective Steps Suggested Corrective Steps (Cont.)(Cont.)

Courts should permit more expert Courts should permit more expert testimony.testimony.

Corroborating evidence should Corroborating evidence should accompany eyewitness ID.accompany eyewitness ID.

Witnesses should be separated and Witnesses should be separated and interviewed separately.interviewed separately.

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Procedures, Limitations Used in Procedures, Limitations Used in Pretrial IdentificationPretrial Identification

Composite sketches can be used Composite sketches can be used when suspect is unknown.when suspect is unknown.

When police lack probable cause for When police lack probable cause for an arrest or exigent circumstances an arrest or exigent circumstances are present, a showup (where a are present, a showup (where a victim or witness views a suspect victim or witness views a suspect singly, not in a group) is admissible.singly, not in a group) is admissible.

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Procedures, Limitations Procedures, Limitations (Cont.)(Cont.)

When a suspect is in custody or has When a suspect is in custody or has been charged with a crime, lineups been charged with a crime, lineups are used.are used.

When police have photos of a When police have photos of a suspect, photo arrays can be shown suspect, photo arrays can be shown (must have six or more persons and (must have six or more persons and must be alike in age, race, size, and must be alike in age, race, size, and dress).dress).

1111

Other Identification Other Identification CircumstancesCircumstances

Identification might occur in an Identification might occur in an inadvertent confrontation by a inadvertent confrontation by a witness or a victim, orwitness or a victim, or

An in-court identification.An in-court identification.

1212

The importance of obtaining The importance of obtaining prior descriptions of prior descriptions of

offendersoffenders It is important that investigating officers It is important that investigating officers

have the witnesses give them as detailed have the witnesses give them as detailed a description of the offender as is a description of the offender as is possible, as soon as possible, after the possible, as soon as possible, after the crime is reported.crime is reported.

The officer should assist the victim and The officer should assist the victim and the witness in searching their memories the witness in searching their memories for details of physical appearances and for details of physical appearances and clothing, no matter how insignificant such clothing, no matter how insignificant such details may seem.details may seem.

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How do Descriptions of the How do Descriptions of the Suspect Help officers?Suspect Help officers?

They can give the police They can give the police reasonable suspicion to perform reasonable suspicion to perform “stops” in the neighborhood “stops” in the neighborhood and elsewhereand elsewhere

The descriptions may be The descriptions may be compared to descriptions given compared to descriptions given by witnesses and victims.by witnesses and victims.

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How do Descriptions of the How do Descriptions of the Suspect Help Officers? (Cont.)Suspect Help Officers? (Cont.)

Detailed descriptions matching the Detailed descriptions matching the defendants can significantly increase defendants can significantly increase the reliability of identifications made the reliability of identifications made later by victims and witnesses.later by victims and witnesses.

Testimony by the investigating Testimony by the investigating officers (and victims/witnesses) in officers (and victims/witnesses) in court concerning prior descriptions court concerning prior descriptions provides important evidence for the provides important evidence for the juries and judges.juries and judges.

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Showup LimitationsShowup Limitations

The U.S. Supreme Court has generally The U.S. Supreme Court has generally held that showups should not be used held that showups should not be used except when necessary, andexcept when necessary, and When police lack probable cause, orWhen police lack probable cause, or When necessary and exigent When necessary and exigent

circumstances are present, orcircumstances are present, or When a suspect is in possession of When a suspect is in possession of

property recently stolen from the victim.property recently stolen from the victim.

1616

Situations Allowing Showups Situations Allowing Showups

The showup does not create a very The showup does not create a very substantial likelihood of irreparable substantial likelihood of irreparable misidentification and the suspect is in misidentification and the suspect is in custody for another crime, orcustody for another crime, or

If the victim or witness knows the If the victim or witness knows the offender, but police aren’t sure they offender, but police aren’t sure they have the right person in custody, orhave the right person in custody, or

If a victim or witness to the crime give a If a victim or witness to the crime give a unique description of the suspect.unique description of the suspect.

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Determining the Reliability of Determining the Reliability of Identification Evidence: Identification Evidence: Neil v. Neil v.

Biggers Biggers GuidelinesGuidelines When eyewitness identification When eyewitness identification

evidence is presented, defense evidence is presented, defense lawyers can cross-examine the ID lawyers can cross-examine the ID witnesses, andwitnesses, and

Can argue, in summation, as to Can argue, in summation, as to factors causing doubts in the factors causing doubts in the accuracy of the identification.accuracy of the identification.

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LineupsLineups

Lineups Lineups are fairly formal, and usually are fairly formal, and usually occur after charges have been filed and occur after charges have been filed and occur in a police station instead of “in the occur in a police station instead of “in the field.” Suspects field.” Suspects DODO have the right to an have the right to an attorney at this point.attorney at this point.

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Using Using lineupslineups to obtain to obtain identification evidenceidentification evidence

Judges’ rules for Judges’ rules for lineupslineups:: Lineups should be used whenever Lineups should be used whenever

practical and must be used in practical and must be used in situations where showups would not be situations where showups would not be authorized.authorized.

Lineups not only minimize suggestions Lineups not only minimize suggestions but also increase the reliability of the but also increase the reliability of the identification evidence.identification evidence.

They are used to test recognition in a They are used to test recognition in a manner that avoids suggestiveness. manner that avoids suggestiveness.

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Key Cases Reflecting Lineup Key Cases Reflecting Lineup ProblemsProblems

U.S. v. Wade U.S. v. Wade 388 U.S. 218388 U.S. 218 Essentially, right to attorney after Essentially, right to attorney after

formal charges have been filed, which formal charges have been filed, which includes “lineups.” includes “lineups.”

Gilbert v. Calif. Gilbert v. Calif. 388 U.S. 263388 U.S. 263 Reaffirmed right to counsel being Reaffirmed right to counsel being

present at the lineup. Also set present at the lineup. Also set guidelines for lineups to be followed guidelines for lineups to be followed by the police.by the police.

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Cases (Cont.)Cases (Cont.)

In In Foster v. CA Foster v. CA 394, U.S. 40, the issue 394, U.S. 40, the issue was that the two lineups were so was that the two lineups were so suggestive of the defendant’s guilt suggestive of the defendant’s guilt that they denied due process.that they denied due process.

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Recommended Lineup Recommended Lineup ProceduresProcedures

Lineups should be Lineups should be sequentialsequential (one (one person at a time) rather than person at a time) rather than simultaneoussimultaneous (group), and (group), and

There should be a Double-Blind There should be a Double-Blind Administrator (the supervising officer Administrator (the supervising officer of the lineup) who has no of the lineup) who has no involvement in the case or involvement in the case or knowledge of the suspect.knowledge of the suspect.

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National Council of Judges National Council of Judges Rules for Lineup ProceduresRules for Lineup Procedures

A reasonable notice of lineup to the suspect A reasonable notice of lineup to the suspect and his/her attorneyand his/her attorney

At least six persons in the lineup who are At least six persons in the lineup who are approximately the same in age, race, size, approximately the same in age, race, size, and dressand dress

All participants in the lineup might be All participants in the lineup might be requested to speak certain words (for voice requested to speak certain words (for voice identification)identification)

No one but the witness to indicate the suspectNo one but the witness to indicate the suspect Witness/victim to view only one person at a Witness/victim to view only one person at a

timetime

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Photo “Lineups”Photo “Lineups”

Suspect is not present; only their Suspect is not present; only their photograph is viewedphotograph is viewed

The court has said the police The court has said the police must use at least 8 “suspects” must use at least 8 “suspects” to compare fromto compare from

Witnesses must view the photo’s Witnesses must view the photo’s independently of any other independently of any other witnesseswitnesses

The photographic array must be The photographic array must be maintained for court purposesmaintained for court purposes

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Photo “Lineups” (Cont.)Photo “Lineups” (Cont.)

Photographs must not be Photographs must not be “suggestive” to identify the “suggestive” to identify the suspect.suspect.

Photographs should be shown Photographs should be shown one photo at a time and the one photo at a time and the person showing the photos person showing the photos should not have knowledge of should not have knowledge of which photo is the suspect. which photo is the suspect.

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Obtaining identification Obtaining identification evidence by other meansevidence by other means

SketchesSketches can be done by an artist or can be done by an artist or with identi-kit with the assistance of with identi-kit with the assistance of one witness or the input of a number one witness or the input of a number of witnesses.of witnesses.

Surveillance cameras, cell phones, Surveillance cameras, cell phones, cameras, and camcorderscameras, and camcorders

Unusual features: tattoos, scars, etc.Unusual features: tattoos, scars, etc. Clothing Clothing Voice identificationVoice identification

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Obtaining Evidence by Other Obtaining Evidence by Other Means (Cont.)Means (Cont.)

Spectrograms/“voice printing”Spectrograms/“voice printing” Fingerprint and DNA banksFingerprint and DNA banks Amber Alert SystemAmber Alert System BiometricsBiometrics

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Using Biometrics for Using Biometrics for Identification and Identification and

AuthenticationAuthentication Due to so many stolen and false Due to so many stolen and false

identities for identification and crime identities for identification and crime prevention purposes, biological prevention purposes, biological reference systems are now being used. reference systems are now being used. These include:These include: Iris (eye)Iris (eye) Hand-based geometryHand-based geometry Voice recognition Voice recognition Facial recognitionFacial recognition

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Courtroom IdentificationCourtroom Identification

During criminal trials, courtroom During criminal trials, courtroom identification of the defendant by identification of the defendant by witnesses often occurs.witnesses often occurs.