I qualify the above with “MAY” because in a circumspect, if minority view, three prosecutors wrote just last month in Police Chief Magazine,
“Recent laboratory research on sequential lineups shows no sequential advantage.”
They then provide an excellent discussion of the contrary research. (web link below) Other research indicates that an eyewitness’ degree of confidence is not a reliable indicator of his accuracy and defense attorneys are requesting jury instructions to that effect. (web link below)
Defending your lineup in court.
If your agency doesn’t have policies on how to collect and preserve eyewitness evidence or you haven’t been trained in or didn’t use best practices recognized and adopted by other law enforcement organizations, prepare for that evidence to be attacked by the defense in a number of ways: (web link below)
- Pretrial motions to suppress that argue the eyewitness identification is the product of faulty procedures that undermine its reliability and therefore violates the defendant’s 14th Amendment due process rights.
- Cross examination on the lack of any formalized practices or on improper practices for collecting eyewitness evidence.
- Cross examination to establish the unreliability of the improper techniques used.
- Cross examination on your lack of training in proper techniques of collecting eyewitness evidence.
- Expert testimony to educate the jury on memory and perception and how your improper techniques contributed to the unreliability of the eyewitness identification.
- Using your cross examination and the defense expert testimony on appeal to persuade an appellate court to adopt the recent research as the new standard for reliability and admissibility.
In fact, defense attorneys across the country have been conferencing and training on just how to attack your lineups. (web link below)
As more states adopt new practices or police agencies voluntarily assume them, prepare for defense attorneys to pit law enforcement agencies against each other. Expect to be cross examined regarding the use of such practices by other agencies and their recommended use by the DOJ, the IACP, the American Bar Association, etc.
If you do not use the blind sequential method, make sure that is a conscious, informed decision – not just a failure to be familiar with current research. Be prepared to back that decision with testimony regarding the research that shows this practice has no advantage. Also be prepared to answer whether this is a minority view among police agencies that have adopted policies regarding lineups.
Juror reactions to lineup procedures testimony should also be considered. A study conducted on the reactions of mock jurors to the Department of Justice Guidelines for the Collection and Preservation of Eyewitness Evidence concluded that failure to follow the recommended guidelines for conducting lineups could result in fewer convictions. (web link below)
If you’re not following DOJ’s guidelines, the prosecutor should be made aware of this study so she can address its implications during jury selection and the government’s case. Moreover, defense attorneys are being urged to request a jury instruction addressing the police’s failure to follow standard eyewitness practices and some courts are giving it. (web link below)
The best defense is an offense.
The best way to defend your eyewitness evidence is before you ever go to trial. Law enforcement agencies must have written policies for conducting lineups that are supported by the research. Plenty of models are provided in this article.
Officers need to be trained in the policies and the research behind them and ensure their investigations comply with the policies. Officers should also be prepared to articulate in court how the procedures they used ensure the greatest reliability of the eyewitness evidence gathered. Preferably this preparation would be included in the training on the policies themselves. At a minimum, officers need to discuss this area of testimony with their prosecutors prior to testifying.