These new procedures were created to help reduce wrongful convictions due to faulty eye witness identification in court. Memory is fabricated and not real. Recency has the potential to alter or even suggest memories. Police regularly use lineups of suspects like in the movies, photo lineups where a group of mugshots are shown to a witness and show ups where the witness drives by the location where the defendant has been arrested to see if that is him or her.
Law enforcement agencies are required to create policies to create live lineups, photo lineups and show ups that follow the statutory guidelines for fairness. These include having someone who does not know who the criminal suspect is to conduct the live line up or show up. If the person conducting the photo show up knows the criminal suspect, then a shuffling procedure of the photographs is used where each photograph is placed in separate folders so the lineup conductor cannot know which photograph the witness is looking at any point during the photo examination. The witness must be told that the actual criminal suspect may or may not be in the particular lineup. In live lineups, the filler suspects must generally resemble physically the actual criminal suspect. There must be a minimum of 4 fillers in a live lineup and 5 fillers in a photo lineup. The lineup or show up conductor must obtain a numeric or percentage confidence level of the identification from the witness at the time of the lineup or show up.
If Law Enforcement does not follow these mandatory guidelines, then the trial judge has the discretion to exclude the misconducted identification but is not required to exclude the identification.
-Author: George C. Creal, Jr.