7-14 Eyewitness Identification

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 5/30/2014

Current Revision Approved: 6/27/2013

General

The purpose of this directive is to establish the proper guidelines for obtaining reliable eyewitness identification and guidelines for the preparation and presentation of lineups and show-ups.

It is the department’s policy to provide its members with the constitutional standards and practical guidelines for taking interview statements and obtaining eyewitness identification. The department subscribes to the guidelines developed by the United States Department of Justice for conducting reliable and accurate eyewitness identification procedures.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy violations are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Definitions

INTERVIEW - An interview is a conversation with a cooperative witness, who willfully furnishes information. Generally, interviews will be made with persons making complaints or persons with knowledge of the incident being investigated.
LINEUP – A group of individuals arranged in a line for identification purposes by law enforcement officers.
PHOTOGRAPHIC ARRAY – A procedure in which photographs are used instead of live persons. This procedure is often used when a suspect has not been identified or when such a person has not been located or arrested.
BLIND-SEQUENTIAL ARRAY – The preferred method of conducting a photographic array in which photographs are presented to the witness one at a time, rather than in a grouping. This is conducted by someone who does not know which member of the array is the “true” suspect. It is also known as a “doubleblind” procedure as the witness also does not know which photo will be the true suspect.
PHOTOGRAPHIC SHOW-UP – A procedure wherein a picture of the suspect is taken and shown to the victim rather than actually placing the suspect before the victim for identification.
PHYSICAL SHOW-UP – A procedure in which circumstances require the prompt display of a suspect to a witness to determine whether the captured person is actually the criminal.

Written or Electronic Statements

Statements shall contain an introductory paragraph, to include all of the following:
1. Name of witness
2. Name of interviewer
3. Name(s) of everyone present
4. Location of interview
5. Date and time of interview
6. Nature of interview
The second paragraph of the statement shall be a brief resume of the witness, to include all of the following:
1. Residence location
2. Date of birth
3. Educational background
4. Employment
5. Marital or family status
6. Home, work and any alternate telephone numbers
7. Pager number and e-mail information, if applicable
8. Any other information which would contribute to the character of the individual, who is making the statement
Procedures for Documenting Statements:
1. Witness statements shall not be audio or video recorded.
2. The officer shall document questions to clarify any point that is unclear or to explore areas that the witness has overlooked.
3. If statements are written by the witness, the officer shall give the witness an opportunity to read and initial any corrections, and sign and date the statement.
4. The officer shall sign the statement and enter the time of conclusion of the interview.
5. If requested, the witness shall be given a copy of the statement.
  1. NOTE: Should any barriers to effective communication exist between the witness and officer, such as a witness who is deaf, does not speak English, or is illiterate, the officer shall ensure that the witness’ communication needs are met before attempting to illicit statements or evidence. The officer’s IBR narrative shall indicate any accommodations that were made.

Evidentiary Methods of Eyewitness Identification

The officer shall document an accurate and exact description of a defendant before any identification method is used. There are four types of evidentiary methods for eyewitness identification: Physical Showup, Photographic Show-up, Photographic Array, and Lineup.

Procedures for a Physical Show-up:
1. A physical show-up shall only be used immediately after a crime has occurred but in no circumstances shall a show-up be used more than three hours after a crime has occurred. A judge will carefully scrutinize a physical show-up for suggestiveness.
2. A physical show-up shall not be used if an officer believes that a victim cannot make a positive identification at the time of the crime because of physical or psychological reasons (i.e. pain, undue stress).
3. An accurate and exact description of a defendant taken from the victim, prior to the physical showup, can be used to determine whether the victim is capable of making identification. The only justifiable reasons for this type of eyewitness identification are:
  1. Emergency – when other forms of identification cannot be used, or
  2. Immediate Identification – a physical show-up near the scene and time of the crime to determine if the captured person is actually the criminal.
4. If practical, the witness shall be transported to the location of the detained suspect.
5. The scene should be sanitized of excess police officers, police vehicles, emergency equipment, etc. prior to the show-up, whenever possible.
6. If there are multiple witnesses and one witness makes an identification during a show-up, the remaining witness(s) shall be reserved for another identification procedure.
7. Prior to the show-up, the witness shall be issued verbal instructions on identifying the suspect. Instructions contained on the VCUPD-72 Conducting a Sequential Photographic Array shall be used for purposes of a show-up as well as a photographic array.
8. Witnesses shall be asked to give feedback in their own words regarding their level of confidence in their identification.
9. Officers shall refrain from giving witnesses any feedback regarding the individual he/she has selected or comment on the outcome of the procedure in any way.
10. Documentation of the show-up and its results shall be maintained in the officer’s written field notes.
Procedures for a Photographic Show-up:
1. A photographic show-up is the same as a physical show-up, except that a picture of the subject is taken and shown to the victim rather than actually placing the suspect before the victim for identification.
2. A photographic show-up shall only be used if the victim knows the suspect and can provide a name. The photograph is used to make a positive identification.
Procedures for Photographic Array:
1. A photographic array is the most common and practical eyewitness identification method. It is a proper identification method only when officers follow the procedures listed below to ensure that the photographic array is not unnecessarily suggestive of any particular suspect (Manson v. Braithwaite, 432 U.S. 98 (1977) and Neil v. Biggers, 409 U.S. 188 [1972]).
2. The department’s preferred method of conducting photographic arrays is the blind sequential method. Procedures for a photographic array are as follows:
  1. Department personnel shall strictly adhere to established procedures for conducting suspect arrays in order to avoid the possibility of error or undue suggestiveness to witnesses.
  2. Department personnel shall report to their supervisor any known errors, flaws or nonconformance with established procedures in the conduct of a suspect array that he/she may observe or become aware of in order that corrective actions may be taken and safeguards established to protect the innocent.
  3. Department personnel shall confer with the Commonwealth’s Attorney’s Office in establishing array procedures in order to assure the best use of this type of evidence and to assure that procedures established are compatible with the prosecution of criminal cases.
3. Composing the Array:
  1. In order to ensure that inadvertent verbal cues or body language do not have an impact on a witness, whenever practical and in consideration of personnel and staffing conditions within the department, the officer conducting the photographic array should be someone who does not know which member of the array is the “true” suspect.
  2. The officer administering the array should ensure that the array is assembled in such a manner that the suspect does not unduly stand out; however, complete uniformity of features is not required.
  3. Photographs shall either be all black and white or all color.
  4. On the rear of each photograph, a unique number (IBR number followed by a sequential number) shall be recorded. The photographs shall be displayed in numerical sequence.
  5. Prior to conducting a photographic array, the officer shall ensure that the names and corresponding unique photo array numbers are recorded in the case file. Extreme care shall be taken to prevent the witness from overturning the photo and observing the recorded numbers.
  6. No writings or information concerning previous arrest(s) shall be visible to the witness. If it is ever necessary to block-out or cover any notation on the photograph, similar blocking-out or covering marks shall be placed on all photographs so that they appear alike.
  7. The officer conducting the array procedure shall use six photographs presented in a sequential manner. One of the photographs shall be of the suspect and the remaining five photographs shall be fillers (non-suspects). The officer shall:
    1. Select fillers who generally fit the witnesses’ description of the offender. When there is a limited or inadequate description of the offender provided by the witness or when the description of the offender differs significantly from the appearance of the suspect, fillers should resemble the suspect in significant features.
    2. Select a photograph that resembles the suspect’s description or appearance at the time of the incident, provided that multiple photographs of the suspect are reasonably available to the investigator.
    3. Avoid reusing fillers in arrays shown to the same witness when showing a new suspect.
    4. Review the array, once completed, to ensure that the suspect does not unduly stand out.
    5. Document the presentation order of each array, ensuring that a complete written record of the proceeding is made and retained. The photographs shall be preserved in their original condition
  8. The suspect’s defense attorney need not be present at either a pre-indictment or postindictment photographic array as they do not personally involve a defendant.
4. Conducting the Identification Procedures:
  1. The identification procedure shall be conducted in a manner that promotes the accuracy, reliability, fairness and objectivity of the witness’ identification. These steps are designed to ensure the accuracy of identification or non-identification decisions.
  2. When presenting the photographic array, the officer administering the array shall:
    1. Prior to conducting a sequential array, the officer must complete a VCUPD-72 Conducting a Sequential Photographic Array, which describes the procedures for preparing the witness for the process. The VCUPD-72 contains a set of instructions and an opportunity for the witness to state, in their own words, the level of certainty of the identification.
    2. Instruct the witness that it is just as important to clear innocent persons from suspicion as it is to identify guilty parties.
    3. Instruct the witness that the offender may or may not be among those in the photographic array and, therefore, the witness should not feel compelled to make identification.
    4. Instruct the witness that if the offender is seen in the array, he/she might not appear exactly the same as on the date of the incident because features such as clothing, head or facial hair can change. Additionally, photographs do not always depict the true complexion of a person which might be lighter or darker than shown in the photograph.
    5. Advise the witness that regardless of whether he/she makes identification, the department will continue to investigate the incident.
    6. Provide all of the following additional viewing instructions to the witness:
      1. Individual photographs will be viewed one at a time
      2. Photographs are positioned in random order
      3. Take as much time as needed to make a decision about each photograph
      4. All photographs will be shown even if identification is made prior to viewing all photographs
    7. Confirm that the witness understands the nature of the sequential procedure.
    8. Present each photograph to the witness separately, in a previously-determined manner, as documented, removing those previously shown.
    9. Avoid saying anything to the witness that may influence the witness’ selection.
    10. Show the photographs in the sequential array to only one witness at a time. NEVER show the photographs to two (2) or more witnesses who are together at the same time.
  3. Witnesses shall be asked to give feedback in their own words regarding their level of confidence in their identification.
  4. Officers shall refrain from giving witnesses any feedback regarding the individual he/she has selected or comment on the outcome of the procedure in any way.
  5. If identification is made, avoid reporting to the witness any information regarding the selected individual until the entire process has been completed.
  6. If the witness requests to view the photographic sequence or specific photographs again, a second viewing is allowable but all photographs must be shown in the same sequence as the initial viewing and in its entirety, even if the witness makes identification during this second showing.
  7. Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.
5. Recording Identification Results:
  1. When conducting an identification procedure, the officer administering the array shall preserve the outcome of the procedure by documenting any identification or non-identification results obtained from the witness. A complete and accurate record of the outcome of the identification procedure is crucial.
  2. When documenting the identification procedure, the officer administering the array should record both identification and non-identification results, including the witness’ own words.
  3. Ensure that the results are signed and dated by the witness and the officer administering the array.
  4. Ensure that no materials indicating previous identification results are visible to the witness.
  5. Ensure that the witness does not write on or mark any materials that will be used in other identification procedures.
    1. NOTE: Photographic arrays may be recorded using video or audio equipment if the lineup takes place at police headquarters. If the photographic lineup takes place elsewhere, an audio device may be used to record the outcome. Use of the device shall be at the discretion of the involved officer.
6. Procedures for In-Person and Photo Lineups (Va. Code § 19.2-390.02):
  1. A physical lineup can be used after a photographic array or independently. In the rare instances that a physical lineup is deemed necessary, the officer shall confer with the Commonwealth’s Attorney’s Office to ensure compliance with all legal requirements and procedural guidelines for physical lineups. Defense counsel is required to be present at any lineup or physical show-up held after the preliminary hearing or indictment, but defense counsel is not required at any pre-preliminary hearing or pre- indictment lineup (or physical show-up). A witness may answer, if desired, such questions asked of them by the defense counsel. The defendant may waive the right to counsel, but the waiver must be made after the defendant has been advised of the right to have counsel present. If counsel has already been appointed for the accused, the defendant’s waiver will not be accepted unless their counsel is notified and agrees to the waiver.
7. Procedures for Identification Under Emergency Circumstances:
  1. Particular care must be exercised in the identification of an accused subject under emergency conditions to prevent a violation of the Due Process Clause, as set forth in the United States Constitution. The conduct of a confrontation depends on the totality of the circumstances surrounding it. Only under emergency conditions would an officer be upheld in the identification of the accused where the criteria do not fall within the guidelines as set forth in this directive.

Forms

VCUPD-72 Conducting a Sequential Photographic Array

Revision History

This policy supersedes the following archived policies:

None – New Policy