Photo Lineup

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PHOTO LINEUP

A presentation of photographs to a victim or witness of a crime.

A photo lineup, also known as a photo array and or photo display, is a procedure used by law enforcement personnel to discover or confirm the identity of a criminal suspect. Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photo-graphs as the perpetrator. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the defendant.

The Supreme Court has ruled that photo lineups should not be unduly suggestive (Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 [1977]). That is, a photo lineup should not be conducted in such a way as to highlight the suspect and elicit an identification of the suspect. If a photo lineup is unduly suggestive, any affirmative identification of a suspect may be excluded from her or his subsequent prosecution.

Police officers typically avoid suggestive photo lineups because they are interested in apprehending the right person. Toward this end, they may ask a witness to look at more than one photo lineup containing the suspect to see if the witness can identify the suspect more than once. Each photo lineup may contain as many as six or more photographs of different persons. Furthermore, to be effective, a photo lineup should contain pictures of persons who look similar to the suspect. For example, if police suspect a Caucasian male and a witness remembers seeing a blond, light-skinned male, the photo lineup will not consist of five pictures of dark-haired, dark-skinned males and one picture of the suspect.

For public safety reasons, police officers do not always take the time to arrange a photo lineup to show witnesses. In some cases officers may use only one picture of a suspect. In case of violent crime, for example, police may need to act swiftly and locate a particular suspect. In Manson, the Supreme Court ruled that using one photograph for the purpose of identifying a person as a criminal suspect is not unduly suggestive.

The use of photographs in a criminal investigation is just one identification procedure used by police. Other procedures include show-ups and in-person lineups. A show-up is the exhibition of a particular criminal suspect to a victim or witness shortly after the crime occurred. An in-person lineup is the live presentation of several persons, including the suspect, to the witness.

Courts examine all the circumstances surrounding an identification. To determine whether any identification is unduly suggestive and therefore inadmissible at trial, courts analyze seven factors, including the opportunity the witness had to view the suspect, the degree of attention the witness paid to the suspect, the accuracy of the witness's description before viewing the suspect or the suspect's photograph, the witness's level of certainty in identifying the suspect, and the length of time that elapsed between the crime and the witness's viewing of the suspect.

A criminal defendant does not have the right to have an attorney present at a photographic lineup until after he or she is indicted or formally charged (United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 [1973]). Nor does a criminal defendant have the right to a hearing, outside the presence of the jury, to make an attempt to block the presentation of photographic identifications (Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 [1981]). However, a defendant does have the right to show to the judge and jury any photographic evidence used in the case, to challenge the witnesses on cross-examination, and to argue to the judge or jury that the photo identification procedure was unduly suggestive and that any identification from it should be disregarded (United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 [1973]).