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CHAPTER NINE
IDENTIFICATION PROCEDURES
Learning Objectives
After studying this chapter, students should be able to:
1. Understand that courts recognize a violation of due process as a ground for rejecting
pretrial identification procedures, but that due process challenges rarely succeed.
3. Understand and appreciate the empirical research regarding human memory and its
impact on identification procedures in criminal cases.
4. Understand that empirical research has demonstrated that factors such as lineup
6. Know that DNA technology has prompted the reevaluation of many past convictions and
led not only to exonerations of the innocent, but also further proof against the guilty.
Understand that forensic science can provide compelling evidence of guilt but also
suffers serious shortcomings.
Lesson Plan
I. The Constitution and Identification Procedures
Learning Objective 1: Understand that courts recognize a violation of due process as a ground
for rejecting pretrial identification procedures, but that due process challenges rarely succeed.
Learning Objective 2: Know that identification procedures are rejected by courts only when
they’re unnecessarily suggestive and create a very substantial likelihood of misidentification.
Learning Objective 3: Understand and appreciate the empirical research regarding human
memory and its impact on identification procedures in criminal cases.
Learning Objective 4: Understand that empirical research has demonstrated that factors such as
lineup composition, neutrality of lineup administrators, pre-lineup instructions, and the way the
lineup is presented can be suggestive and affect the accuracy of identification.
Class Discussion/Activity
Prior to the class reading this chapter, present them with an individual (student from
another class, faculty member) during class for a few minutes. You can do this by
having someone waiting next to you while you are talking with them at the
beginning of class or have someone come into class and hand you a note and leave.
How you achieve this is up to you. After the individual has left the class, ask
students to take a few minutes and write down everything they remember about the
individual. Have the individual come back in and see how your students did. Refer
back to this activity when you are lecturing/discussing this chapter.
A. Prior to identifying the defendant in a courtroom, eyewitnesses have made an
identification in a lineup or a show-up.
B. The Wade-Gilbert-Stovall Trio
1. U.S. v. Wade (1967) - Wade participated in a lineup after indictment without his
lawyer which violated his Sixth Amendment right to counsel.
2. Gilbert v. California (1967) held that a “bright-line” per se exclusionary rule banned
3. Stovall v. Denno (1967) introduced due process rights into determining the
admissibility of evidence derived from a pretrial show-up before indictment.
What If Scenario
What if instead of a two-pronged test, defendants only had to prove that the
identification was unnecessarily suggestive?
See Assignment 5
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C. “Reliability is the linchpin”
1) Defendants have to prove by a preponderance of the evidence two elements
regarding a lineup, show-up, or photo ID:
(2) The unnecessarily suggestive procedure created a “very substantial likelihood
of misidentification.”
2. Five factors form the “totality of circumstances” courts use to determine witnesses’
reliability:
2) Witnesses’ degree of attention at the time of the crime
4) Witnesses’ level of certainty when identifying suspects at the time of the
identification procedure
3. In some cases law enforcement had so little to do with the identification that courts
ruled that there was no due process violation because there was no “state action.”
1) These are “accidental show-ups”
II. Social Science and Mistaken Eyewitness Identification
Learning Objective 4: Understand that empirical research has demonstrated that factors such as
lineup composition, neutrality of lineup administrators, pre-lineup instructions, and the way the
lineup is presented can be suggestive and affect the accuracy of identification.
Learning Objective 5: Know the recommended reforms for criminal identification procedures
and appreciate the empirical research supporting these reforms.
Media Tool
“Police Lineups: Making Eyewitness Identification More Reliable”
https://www.ncjrs.gov/pdffiles1/nij/219603.pdf
o National Institute of Justice article on making eyewitness identification
more reliable.
o Discussion: What suggestions does the article make for improving
eyewitness identification? Do you agree with the suggestions? Are there
any other suggestions you can think of that might improve the reliability of
eyewitness identification?
Media Tool
“The Eyewitness Test: How do you stack up?”
http://www.youtube.com/watch?v=x6fRH5MLBIU
o YouTube video of staged interaction regarding reliability of eyewitness
identification.
o Discussion: How did you do? How difficult is it to accurately remember
what happens in a few seconds? What information did the detectives say
was most important? Were you surprised by that?
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6
What If Scenario
What if courts used empirical research to determine whether witness identification
was reliable? What would be different about tests of reliability?
A. Relying on victims’ identification of strangers is risky even in ideal circumstances.
B. Memory and the identification of strangers
1) Memory consists of acquisition, retention, and retrieval.
1) The brain isn’t a DVR.
3) We all pay selective attention to what’s going around us.
(1) Length of time to observe
(3) Focus of the observations
(5) Race of the witness and the stranger
3. Retention of memory concerns the information the brain stores between the time of a
2) Memory fades most during the first few hours after the crime.
4) Confidence in our memory rises as its reliability actually fades.
4. Retrieval of memory refers to the information retrieved from memory at the time of
2) Errors of omission result in failure to recall a key detail.
3) Errors of commission result in picking an innocent person in a photo array.
C. The power of suggestion
1. Most misidentifications result from a combination of natural memory imperfections
and suggestion.
3. Research indicates that witnesses frequently add to their stories of the event based on
suggestions by others.
III. Psychological Research and Eyewitness Identification
Learning Objective 4: Understand that empirical research has demonstrated that factors
such as lineup composition, neutrality of lineup administrators, pre-lineup instructions, and
the way the lineup is presented can be suggestive and affect the accuracy of identification
See Assignment 4
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10
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Media Tool
“A National Survey of Eyewitness Identification Procedures in Law
Enforcement Agencies”
http://policeforum.org/library/eyewitness-
identification/NIJEyewitnessReport.pdf
o National Institute of Justice article surveying law enforcement
agencies in the United States
o Discussion: Divide students into small groups (or individually if your
class is small) and have each group/individual read a chapter in the
article. Have students discuss the information in their section of the
article. This can also be done as a take-home assignment and students can
present the information from their chapter of the article to the class.
A. Defense counsel generally loses arguments regarding suggestive eyewitness accounts
because of the high standard of the reliability test of eyewitness evidence.
1. The test remains the law of the land despite the empirical research questioning the
reliability of eyewitness evidence and the fact that 75% of defendants exonerated by
DNA are cases of mistaken eyewitness identification.
B. Identification research methods
1) Examination of real procedures used in criminal cases
1) Researchers create crimes that unsuspecting people witness
(1) Students as participants.
(3) Participants know there are no serious consequences for mistakes.
C. Eyewitness retrospective self-reports
2) Psychologists consider them to be unreliable because they are highly malleable
based on
(2) Need to appear consistent
(3) Reinterpretations of the past based on new events
D. Empirical assessments of lineups
1. The lineup composition
1) Choice of fillers and suspects can infect the reliability of lineups.
3) Suspect and fillers should resemble one another and wear similar clothing.
2. Pre-lineup instructions
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protected website for classroom use.
3. Suggestive behavior by the lineup administrator
1) Administrator’s knowledge or expectations influence the witness.
Class Discussion/Activity
Divide students up into groups, or if a small class do as a whole class. Have each
group find pictures of people online and create their own photo show-up. Have them
identify one person as the suspect and the rest as fillers. Have students show the
suspect to the class and then have the class try to pick out the suspect the next class
period. Discuss how well they did at the assignment.
E. Show-Ups
1. They’re less reliable than lineups but are used more frequently.
1) Accidental encounters between witnesses and suspects
3) Suspects on the loose
What If Scenario
What if all of the recommendations for reforming identification procedures were
held to be constitutionally required by the Supreme Court?
F. Psychological research and the Manson reliability variables
1. The witness’s opportunity to view the culprit
1) Distance
(1) Witnesses overestimate time spent looking and underestimate how long their
view was blocked
2. The witness’s attention
1) Amount of time spent looking at the culprit’s face
3. The witness’s certainty
2) When there are suggestive procedures can inflate the confidence of the witness
G. Recommendations for reforming identification procedures
1. Recommendations by psychologists and lawyers
2) Looser standards for admitting expert testimony on human perception and
memory and the shortcoming of eyewitness identification
4) Mandating certain police identification procedures
2. Recommendations by legislatures and law enforcement agencies
1) Utilize nonsuspect fillers
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3) Instruct eyewitnesses that the perpetrator might or might not be present and that
the administrator doesn’t know which person is the suspect
5) Assess eyewitness confidence immediately after identification
6) Avoid multiple identification procedures in which the same witness views the
same suspect more than once
H. State court opinions
2. Some courts have added a requirement of a cautionary instruction and a requirement
of expert witnesses to explain to juries the limits of human perception and memory
and how that affects eyewitness identification evidence
IV. Forensic Science and Identification Evidence
Learning Objective 6: Know that DNA technology has prompted the reevaluation of many past
convictions and led not only to exonerations of the innocent, but also further proof against the
guilty. Understand that forensic science can provide compelling evidence of guilt but also suffers
serious shortcomings.
Media Tool
“Deoxyribonucleic Acid (DNA)”
http://www.genome.gov/25520880
o Human Genome Project website section on DNA
o Discussion: Have students read the information on the website and discuss the
questions on the website as a class. After this discussion, talk with students
about how complex DNA is and how this may complicate its use in forensics.
A. Forensic science includes many disciplines and techniques for such identification
evidence as:
1. DNA
3. Blood types
5. Bite marks
7. Handwriting
9. Poisons
11. Digital evidence
B. DNA profile identification
1. There is widespread agreement that in certain circumstances DNA can establish to a
virtual certainty whether a given individual committed a particular crime.
See Assignments 1–3
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2. The Supreme Court ruled in District Attorney’s Office for the Third Judicial District
v. Osborne (2009) that there is no constitutional right of access to forensic evidence.
Class Discussion/Activity
Assign students one of the reasons for flawed forensic tests. This assignment can be
done in small groups or individually. Have students create a presentation on their
topic and present it to the class.
C. Flawed forensic evidence
1) Monopoly
3) Poor quality control
5) No division of labor between forensic analysis and interpretation
7) Lack of competition among forensic counselors
2. Forensic ipse dixit statutes - Governors, prosecutors, and courts recognize that ipse
3. Defendants have the right to confront the witnesses against them
1) Confrontation is designed to weed out the fraudulent and incompetent analyst
What If Scenario
What if forensic technicians were required to present forensic evidence in person?
Class Discussion/Activity
Have students research your state statutes and determine if your state has an ipse
dixit statutes? If so, what are they? If not, what processes does your state have to
address the problem associated with ipse dixit statutes?
Lecture Notes
For violent crimes committed by strangers, eyewitness identification is the most widely used,
and often the only, way to identify a perpetrator and prove his or her guilt. In a lineup, witnesses
try to pick the suspect out of a group of individuals who are present. In a show-up, witnesses
match the suspect with one person, who is either present or pictured in a “mug shot”.
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preponderance of the evidence that under the totality of circumstances the identification
procedure was unnecessarily suggestive and created a substantial likelihood of misidentification.
Five factors in the totality of circumstances should be considered: 1) a witness’s opportunity to
view the suspect; 2) a witness’s degree of attention at the time of the crime; 3) a witness’s
accuracy of description of the suspect prior to identifying them; 4) a witness’s certainty about
their identification; 5) the length of time between the crime and the identification. Eyewitness
identifications are almost never rejected.
Scientists who study memory refute common assumptions about how memory functions and
under what circumstances it is likely to be reliable. When memories are acquired, the brain does
Suggestion is particularly powerful during the retention and recollection phase. Research
finds that witnesses add to a story based on what information researchers give them. People are
not good at keeping memories acquired during an incident separate from suggestions that occur
thereafter. Identification research uses both new experiments and archival data. Experimental
research is subject to concern about whether volunteers are good representatives of average real-
world witnesses under stress.
The composition of the lineup and the instructions given to witnesses prior to the lineup
influence identifications. Instructions that seem reasonable are often more suggestive than we
realize. Show-ups are substantially less reliable than lineups. Courts admit show-up
identifications even if a witness runs into a suspect in the courthouse, saw police pursuing the
suspect, and under other potentially misleading situations.
Research shows our reported opportunity to view a culprit varies widely from our actual
opportunity to do so. The amount of time spent observing a culprit is less important than what
the witness did with the time and where they focused their attention.
Suggestions for reforming identification procedures include using non-suspect fillers that
minimize suggestiveness toward the suspect; using a double-blind procedure; instructing
memory; require corroboration of eyewitness identification in certain situations; and mandate
that police use such reforms as sequential lineups.
Key Terms
lineups: Live identification procedure in which the witnesses try to pick the suspect out of a
group of individuals who are present. (p. 337)
photo array: An identification procedure in which witnesses are shown a group of photos from
which to try to pick out the suspect. (p. 337)
show-ups: A procedure in which the witness tries to match the suspect with one other person,
either live or a mug shot photo. (p. 337)
preponderance of the evidence: A standard requiring the party who has the burden of proof to
prove that something is more likely than not. (p. 338)
unnecessarily and impermissibly suggestive: Circumstances under which, if proven by a
preponderance of the evidence, a lineup, show-up, or photographic array can be thrown out of
court as evidence as a violation of due process. (p. 338)
per se approach: An approach to determining the constitutionality of an identification, which
focuses on the procedures employed by officials. It requires the exclusion of out-of-court
identification evidence, without regard to its reliability, whenever it was obtained through
unnecessarily suggestive procedures. (p. 341)
totality of the circumstances: Weighing all of the facts surrounding the government’s
establishing identification of the suspect to determine if it’s reliable enough to be admitted; also
called the per se approach. (p. 342)
accidental show-ups: Cases where a witness happens to see the defendant in custody, say
outside the courtroom or in the police station. (p. 345)
memory trace: Trace evidence in the witnesses’ brains similar to physical trace evidence like
semen or blood. (p. 350)
acquisition of memory: The perception of an event, when information is first entered into
memory. (p. 350)
retention of memory: The process of storing information during the period of time between an
event and the recollection of particular information. (p. 350)
retrieval of memory: The time when a person recalls the stored information about an event for
the purpose of identifying a person in the event. (p. 350)
eyewitness recognition: Eyewitnesses are shown persons or objects and asked to indicate
whether they were involved in the crime. (p. 352)
errors of omission: Failure to recall a detail or recognize a perpetrator. (p. 352)
errors of commission: Picking an innocent person in a lineup or photo array. (p. 352)
suggestion: The interpretation of events shaped by other people’s influence. (p. 352)
archival research: Research that analyzes real procedures used in actual criminal cases. (p. 354)
experimental research: Researchers create crimes (live, staged, or videotaped) that are viewed
by unsuspecting witnesses who the researchers then question about what they observed. (p. 354)
eyewitness retrospective reports: Witnesses’ in-court recollections. (p. 354)
fillers: persons who are known to be innocent who participate in lineup procedures in order to
reduce the chance of infecting the reliability of the line-up. (p. 355)
relative judgment: When witnesses select a person in the lineup who looks most like the
perpetrator because they feel pressured in some way to identify the offender. (p. 355)
sequential presentation: Officials present members of a lineup to witnesses one at a time.
(p. 361)
simultaneous presentation: Officials present members of a lineup to a witness at the same time,
standing together. (p. 361)
cautionary instruction: When a trial judge instructs the jury explaining the weaknesses of
eyewitness identification evidence. (p. 362)
forensic science: The application of scientific methods and techniques to investigate crimes,
comprises many disciplines. (p. 365)
DNA testing: Scientific procedure that can distinguish between any two individuals on the
planet (except for identical twins). (p. 366)
Discussion Questions/Activities
1. Have students visit the Internet site for The Innocence Project started by Barry Scheck and
Peter Neufeld at Benjamin Cardozo School of Law. The site has a fascinating discussion
2. Have students visit The Innocence Project Internet site—this time to read about the problems
with scientific evidence, including DNA evidence and problems associated with forensic
3. Have students research the Justice for All Act (Innocence Protection Act) of 2004. It is
federal legislation that, among other things, grants federal inmates the right to petition the
5. Have student’s research the preponderance of evidence standard as it relates to defense
