When the police believe they have an eyewitness to a crime, they often bring that person to the station to try to identify a suspect. This is primarily done through a lineup or a photo array. Unfortunately, studies have shown that many identifications by eyewitnesses are mistaken or are the result of a deliberate attempt to lie.
According to the National Registry of Exonerations, unintentional misidentifications have been found in about 30% of cases where the suspect was later exonerated. In approximately another 26% of exonerations, the witness was shown to have identified the exoneree even though another person committed the crime. In about 17%, the witness accused the exoneree of a crime that never occurred.
Overall, a 2014 review of 1,365 exonerations found some type of false identification in 75%.
Common suggestive features
Where the witness makes a mistaken identification, the problem is often suggestive features in the lineup or photo array. Sometimes, these suggestive features are merely bad practice. In other cases, there can be deliberate misconduct.
For example, in a clean lineup everyone should generally match the witness’s description so that no one stands out. Sometimes, police gather their suspect and any random set of individuals they have on hand. This makes the lineup about recognizing the obvious match.
According to the Registry, people have been put in lineups where they were the only member of their racial group. People have been put in lineups dressed in prison clothes while the others in the lineup were not. People have been put into clothes like those the suspect was allegedly wearing. These techniques all highlighted a person the police suspected and later resulted in exoneration.
In photo arrays, the officers may, for example, hand the photos to the witness one at a time instead of as a group. This makes it difficult to make comparisons or distinctions and use the photos to narrow things down.
Sometimes, police actually tell the eyewitness who they think they should pick. There have been cases where the police offered deals to witnesses in exchange for a particular ID. In others, they have threatened the witness unless they went along.
In other cases, the police make their choice clear more subtly. For example, they may include their suspect in multiple lineups before the same witness. Or, they may evince excitement when the witness seems about to choose their suspect or disappointment when they seem about to choose someone else.
I’m going to be in a lineup. Can my lawyer attend?
Yes. In fact, when a lineup or array is done without the defendant’s counsel, it may not be admissible later on. This is in part because there is the potential for errors or even intentional misconduct that needs to be apparent to the defense from the beginning.
The consequences of a misidentification can be life-altering. A person who is only a suspect can be arrested, charged and sometimes kept in jail until the case is resolved. It’s only too common for eyewitnesses to be believed, even when the person they identified does not match the original description the witness gave, or even when the person has a solid alibi. You could easily be convicted based primarily on eyewitness testimony even though eyewitnesses have been shown to be wrong in many cases.
You should have your lawyer attend any lineup you’re involved in. There are simply too many things that could go wrong, even when the officers have only positive intentions.