Pre-Trial Identification Procedures And DOJ Guidelines

By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

In this article, we first review the law regarding pre-trial identification procedures and some of the policy reasons supporting the approved procedures. We then review guidelines recently published by the United States Department of Justice which are to be utilized by federal law enforcement agencies when conducting pre-trial identification procedures.

The United States Supreme Court has recognized that "[d]espite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The defendant is protected by due process "against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." See Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977), quoted in Webster v. State, 299 Md. 581, 599-600, 474 A.2d 1305, 1314-15 (1984).

In Simmons, the Supreme Court recognized that improper use of photographs by police may sometimes cause witnesses to make misidentifications. 390 U.S. at 383-84:

A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.

Id.

The Simmons Court declined to prohibit categorically the use of photographs, either as a matter of constitutional law or in the exercise of its supervisory power, holding that:

[E]ach case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Id. at 384.

Maryland has also recognized that the use of photographic displays by the police to identify suspects is used widely, and when conducted properly, has been held to be admissible evidence. Jones v. State, 395 Md. 97, 107-11, 909 A.2d 650, 656-58 (2006).

In Jones v. State, 310 Md. 569, 530 A.2d 743 (1987) (overruled on different grounds), the COA addressed issues related to a motion to suppress an extra-judicial identification and the due process protections against admissibility of evidence derived from out-of-court, suggestive identification procedures. Relying on Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984), the COA pointed out that the inquiry for due process challenges to extra-judicial identifications is a two step inquiry. Jones, 310 Md. at 577, 530 A.2d at 747. The first is whether the identification procedure was impermissibly suggestive. Id. If the answer is "no," the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. Id. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable. Id. The COA pointed out in Jones that in the context of a pre-trial photo identification, unless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness's identification is not relevant for due process purposes. Id. at 578, 530 A.2d at 747.

In Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285 (1969), Judge Orth discussed the relative burdens on each party for a motion to suppress identification evidence. The initial burden of going forward rests upon the defendant, whereas the ultimate burden of persuasion rests upon the State:

At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effect is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this 'by clear and convincing evidence' that the in-court identification is based 'upon observations of the suspect' by the witness other than the confrontation or photographic identifications.

Id. at 68, 250 A.2d at 291.

In Smiley v. State, 442 Md. 168, 178-85, 111 A.3d 43, 49-53 (2015) the COA re-affirmed the procedure discussed in Jones and then further advised that suggestiveness can arise during the presentation of a photo array when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify. See Jones, 310 Md. at 577, 530 A.2d at 747; see also Conyers v. State, 115 Md.App. 114, 121, 691 A.2d 802, 806 (1997), cert. denied, 346 Md. 371, 697 A.2d 111 (1997) ("The sin is to contaminate the test by slipping the answer to the testee.") (emphasis omitted).

The COA has concluded that a photo array "'to be fair need not be composed of clones.' " Bailey v. State, 303 Md. 650, 663, 496 A.2d 665, 671 (1985) (quoting Webster v. State, 299 Md. 581, 620, 474 A.2d 1305, 1325 (1984)). In Bailey, Bailey alleged that the photo array shown to the victim was impermissibly suggestive, because the men in four of the six photographs did not resemble him. The COA concluded that the array was not impermissibly suggestive, because the mug shots that comprised the array reflected a number of similarities, to include: each man was photographed from the same camera angle; each man had the same photo card around his neck, the text of which had been blacked out, each individual was a young black male, each individual had close-cropped hair, several of the men had slight mustaches, though none were bearded, the men wore different styles of casual shirts, and none of the individuals had any unusual features.

In a subsequent case, Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), the COA held that the identification procedure was impermissibly suggestive when only a single photograph was presented to the witness, under circumstances that were not exigent.

The United States Department of Justice recently published its guidelines for how law enforcement officers should conduct pre-trial identification procedures. A press release outlined the policy behind the guidelines and listed the actual guidelines themselves. See https://www.justice.gov/opa/press-release/file/923201/download (last visited January 16, 2017).

While these guidelines are intended for law enforcement, they are also relevant to challenging pre-trial identification procedures and provide what can be used, by defense counsel, as a checklist for cross-examining a police officer regarding the procedure employed in conducting pre-trial photo identifications. Failure to follow these guidelines may provide some basis for arguing that the procedures were unduly suggestive and that the identification resulting from the unduly suggestive procedure is not reliable.

In explaining the reasons for the publication of these guidelines, the Department of Justice noted that it last addressed procedures for photo arrays in its 1999 publication, Eyewitness Evidence: A Guide for Law Enforcement and that research and practice have both evolved significantly since then. The DOJ commented that, for example, there is

[A] growing body of research that has highlighted the importance of documenting a witness's self-reported confidence at the moment of the initial identification, in part because such confidence is often a more reliable predictor of eyewitness accuracy than a witness's confidence at the time of trial. Similarly, there has been an evolution in views on whether the "sequential" administration of a photo array (presenting the witness one photo at a time) results in more accurate identifications than a "simultaneous" administration (presenting all of the photos at once).

The DOJ report pointed out that,

An investigator's statements when administering an identification procedure can influence a witness's selection of a suspect in a photo array as well as his or her confidence in the choice. Influence can occur, for example, when the investigator suggests in advance that the perpetrator is in the array ("We found the guy with your credit cards" or "We arrested someone we want you to identify"), when the investigator confirms or disconfirms the witness's pick ("Good work! You picked the right guy"), or when the investigator communicates such messages through nonverbal gestures. In either case, witnesses may be more inclined to select a photograph from the array or be more confident in their selection than they otherwise would be.

The report advises that "[s]uggestiveness during an identification procedure can result in suppression of both out-of court and in-court identifications and thereby seriously impair the prosecution's ability to prove its case beyond a reasonable doubt."

The report further observes that,

There are several recommended approaches to avoid inappropriate investigator influence or an allegation of inappropriate investigator influence. First, as the procedures in the new guidelines outline, those conducting photo arrays must consciously "avoid any words, sounds, expressions, actions or behaviors that suggest who the suspect is." Second, feedback is virtually impossible when the one conducting the photo array does not know who the suspect is or which photograph is that of the suspect...'if administrators are not involved with the construction of the lineup and are not aware of the placement of the potential suspect in the sequence, then they cannot influence the witness.

The report cautions that even though it recommends blind procedures, it acknowledges that such procedures may not be feasible in some circumstances because of "financial costs and human resource demands." In such situations it recommends that investigators at least use "blinded" procedures in which the officer conducting the photo array cannot see the order or arrangement of the photographs viewed by the witness or which photograph(s) the witness is viewing at any particular moment. Even in these circumstances law enforcement should consider "new technologies" such as "computer-based presentation technology" to prevent inadvertent suggestiveness. "If neither blind nor blinded procedures are practicable under the circumstances, those conducting the photo array should document the steps they took to avoid any influence before or after the array was shown and a confidence statement was taken."

The DOJ report observes that a witness's identification and assessment of certainty is best memorialized if law enforcement agencies electronically record the identification procedure and the witness's response.

Electronic recording preserves the identification process for later review in court and also protects officers against unfounded claims of misconduct. Video-recording is helpful because it allows fact finders to directly evaluate a witness's verbal and nonverbal reactions and any aspects of the array procedure that would help to contextualize or explain the witness's selection. As of 2013, approximately one-fifth of state and local law enforcement agencies had instituted video-recording of photo arrays.

The DOJ report notes that it has been recommended "'that the video recording of eyewitness identification procedures become standard practice,' a practice that continues to expand as legislation and model policies urge its implementation." Where video is impracticable, "an audiotape may also be useful because it allows judges and jurors to hear exactly what was said by both the administrator of the photo array and the witness rather than relying exclusively on an oral or written report about the procedure."

U.S. DEPARTMENT OF JUSTICE

EYEWITNESS IDENTIFICATION PROCEDURES FOR

CONDUCTING PHOTO ARRAYS

Below are excerpts from the DOJ's guidelines:

Location of the Photo Array

1.1 Unless impracticable, the witness should view the photo array out of earshot and view of others and in a location that avoids exposing the witness to information or evidence that could influence the witness's identification, including information about the case, the progress of the investigation, or the suspect.

1.2 Neither the suspect nor any photographs of the suspect (including wanted posters) should be visible in any area where the witness will be present.

Photograph of the Suspect

2.1 When selecting a photograph of the suspect for the photo array, the administrator should include only one suspect in each photo array regardless of the total number of photographs and regardless of whether multiple suspects fit the same description.

2.2 Unless impracticable, the administrator should select a photograph of the suspect that resembles the witness's description of the perpetrator or the perpetrator's appearance at the time of the incident.

2.3 The administrator should avoid using a photo that is several years old or has different characteristics (for example, hair style, or facial hair) than those described, unless a current photograph cannot be taken or procured.

Selection of Filler Photographs

3.1 A photo array should include at least five filler, or non-suspect, photographs.

3.2 Fillers should generally fit the witness's description of the perpetrator, including such characteristics as gender, race, skin color, facial hair, age, and distinctive physical features. They should be sufficiently similar so that a suspect's photograph does not stand out, but not so similar that a person who knew the suspect would find it difficult to distinguish him or her. When viewed as a whole, the array should not point to or suggest the suspect to the witness.

3.3 Where the suspect has a unique feature, such as a scar, tattoo, or mole, or distinctive clothing that would make him or her stand out in a photo array, filler photographs should include that unique feature either by selecting fillers who have such a feature themselves or by altering the photographs of fillers to the extent necessary to achieve a consistent appearance. If the suspect's distinctive feature cannot be readily duplicated on the filler photographers, then the suspect's feature can be blacked out and a similar black mark can be placed on the filler photographs. The administrator should document any alterations to either the fillers or the suspect's photograph as well as the reason(s) for doing so.

3.4 Photographs should be of similar size, background, format, and color. Photographs should be numbered or labeled in a manner that does not disclose any person's identity or the source of the photograph. No other writing or information should be visible.

3.5 Nothing should appear on the photos that suggests a person's name, his or her inclusion in a previous array, or any information about previous arrests or identifications.

3.6 If there are multiple perpetrators or multiple suspects, the administrator should inform the witness in advance that more than one array will be shown.

3.7 Fillers should not be reused in arrays for different suspects shown to the same witness.

Method of Presenting Photographs

4.1 Administrators may employ either sequential or simultaneous procedures. Under a sequential procedure, the witness looks at one photograph at a time in a finite number of photographs until he or she has seen all in the array (with each photo being taken back before the next one is shown). In a simultaneous procedure, the witness observes all of the photos in the array at once.

Administrator's Knowledge of the Suspect

5.1 The administrator must ensure that he or she does not suggest to the witness even unintentionally - which photograph contains the image of the suspect. Oftentimes, the best and simplest way to achieve this is by selecting an administrator who is not involved in the investigation and does not know what the suspect looks like.

5.2 There are times when such "blind" administration may be impracticable, for example, when all of the officers in an investigating office already know who the suspect is, or when a victim-witness refuses to participate in a photo array unless it is administered by the investigating officer. In such cases, the administrator should adopt "blinded" procedures, so that he or she cannot see the order or arrangement of the photographs viewed by the witness or which photograph(s) the witness is viewing at any particular moment.

5.3 "Blinded" administration can be accomplished by:

5.3.l If simultaneous administration: Randomizing the order of photographs and shielding the administrator from the photographs (for example, by displaying the images on a computer screen between the witness and the administrator, so that the witness can see it but the administrator cannot).

5.3.2 If sequential administration: Putting each photograph in its own physical folder, shuffling the order of the folders, and standing where the administrator cannot see which photographs the witness is viewing.

5.4 There may be exceptional circumstances in which it is not practicable to conduct either a blind or blinded photo array. In those instances, the administrator should document the reasons for the non-blind(ed) procedure and be prepared to explain the reasons for conducting such an alternative procedure.

Instructions to Witness

6.1 The administrator should read instructions to the witness and then permit the witness to read them and ask any questions. The witness and administrator should sign and date the instructions.

6.2 The administrator should not interrupt the witness so long as she or he is looking at the array. However, when it becomes apparent that the witness is finished and no longer looking at the array, the administrator should end the procedure.

6.3 Instructions should use language similar to that below:

6.3.1 "In a moment, you will be shown a group of photographs. The group of photographs may or may not contain a photograph of the person who committed the crime of which you are the victim [or witness]."

6.3.2 "Sometimes a person may look different in a photograph than in real life because of different hair styles, facial hair, glasses, a hat, or other changes in appearance. Keep in mind that how a photograph was taken or developed may make a person's complexion look lighter or darker than in real life."

6.3.3 "Please let me know if you recognize the person who committed the crime [or the actions you witnessed]. If you do recognize someone, please tell me how confident you are of your identification."

6.3.4 "You may not recognize anyone. That is okay. Just say so. Whether or not you select someone, we will continue to investigate the case."

6.3.5 "Do not assume that I know who committed this crime."

6.3.6 "Pay no attention to any marking or numbers on the photographs or any differences in the type or style of the photographs. They are not relevant to identifying anyone in the photographs."

6.3.7 "Please do not discuss this procedure or any photograph that you may pick with any other witness in this case."

6.3.8 "Please let me know if you do not understand these instructions or if you have any questions."

6.3.9 If sequential administration: "You are going to look at the photographs one at a time. You may make a decision at any time. If you select a photograph before you get to the end, our protocol requires that you look at the rest of the photographs anyway. If, after seeing all the photographs, you want to see one or more photographs again, you should look at the entire array again."

Multiple Witnesses

7.1 If multiple witnesses are to be presented with photo arrays, each witness should be instructed and view the photo array separately.

7.2 A witness should not be able to hear or observe other witnesses during an identification procedure.

7.3 A witness who has seen the array should not return to the same area when other witnesses are waiting to see the array.

7.4 For each suspect, the administrator should use the same photo array for multiple witnesses. However, the order of appearance in the photo array should be changed if possible.

Administrator Feedback

8.1 The administrator must avoid any words, sounds, expressions, actions or behaviors that suggest who the suspect is. Before, during, or after conducting the photo array, the administrator should not:

8.1.1 Volunteer information about the suspect or the case;

8.1.2 Indicate that the administrator knows who the suspect is;

8.1.3 Indicate to the witness that he or she has picked the "right" or "wrong" photograph; or

8.1.4 Tell the witness that any other witness has made an identification.

8.2 If the witness makes an identification, the administrator should ask the witness to state in his or her own words how confident he or she is in the identification (known as a "statement of confidence"). 8.3 If the witness is vague in his or her answer, such as, "I think it's #4," the administrator should say: "You said [I think it's #4]. What do you mean by that?"

Documentation

9.1 The witness's identification of a photo, if any, and the corresponding statement of confidence should be clearly documented by:

9.1.1 Video- or audio-recording the photo array; or

9.1.2 The administrator immediately writing down as close to verbatim as possible the witness's identification and statement of confidence, as well as any relevant gestures or non-verbal reactions. The witness should confirm the accuracy of the statement.

9.2 The witness should indicate his or her identification in writing.

9.2.1 If simultaneous administration: The witness should circle the photograph chosen and then sign and date the photograph.

9.2.2 If sequential administration: The witness should sign and date the front or back of the photograph chosen.

9.2.3 If a witness fails to make an identification, the administrator should record so in writing.

9.3 The administrator should document the following elements of the identification procedure:

9.3.1 The approximate amount of time it took the witness to make an identification;

9.3.2 The presentation method and order of the photographs displayed;

9.3.3 The names of all persons present during administration; and

9.3.4 Any other facts or circumstances that would help contextualize or explain the witness's selection.

9.4 In addition to documenting information about an identification, the administrator should preserve as evidence:

9.4.1 The written copy of the instructions signed and dated by the witness and the administrator; and

9.4.2 All photographs shown to the witness, including any identified, signed, and dated by the witness.

We hope these guidelines help you in obtaining, defending, objecting to, or ruling on pre-trial photo identification in your role in the judicial system.