Agencies should minimize the use of showup procedures and should adopt standard procedures for conducting prompt showups in a neutral manner and location.
Comment:
a. Minimizing showups. Showup procedures, in which a single image or live person is presented to an eyewitness, even if conducted promptly after an incident, are especially problematic because they are inherently suggestive. This is because by definition they involve a lone subject, rather than an array with fillers that can test the accuracy of an eyewitness. They create greater risks of error, including both identification of an innocent person and nonidentification of a guilty person. As such, showups should be used only rarely, and only within a very short amount of time after an incident.
Officers should instruct eyewitnesses not to look for culprits among members of the community and not to search through social media to locate images of potential culprits. Such viewings can in effect result in a showup, in which the eyewitness looks at a single image of a person. Instead, officers should instruct eyewitnesses to provide any relevant information to officers, so that officers can obtain images of suspects and decide whether to conduct an eyewitness identification procedure.
b. Procedures for showups. Agencies should ensure that if and when showups are conducted, standard and clear instructions are used. A showup should be conducted in a neutral location, without any additional suggestion beyond the fact of the solo presentation of the suspect. The eyewitness should be told that the culprit may or may not be present even when the eyewitness is shown only a single person. The eyewitness should be told that he or she does not have to make an identification and that the investigation will continue regardless of what choice is made.
c. When to conduct showups. Exigent circumstances may support the need to conduct a showup identification immediately after an incident, including the need to rule out or identify a person near a crime scene. Such exigency should be interpreted narrowly. Agencies should seek out technology—such as software with image archives—that could permit the quick creation of photo arrays in order to present those images to witnesses in the field rather than resort to using a showup. Facial-recognition software, if properly used, can provide a means to construct fair lineups for use in eyewitness identification procedures.
d. In-court identifications. When an eyewitness is permitted to identify a defendant in court, that identification is in effect a showup, since there are no fillers present, and it is obvious where the defendant is sitting, at counsel table. Agencies should ensure through policy and practice that an eyewitness is never asked for the first time to make an identification in court, but rather, that an eyewitness identification procedure has been conducted previously. Judges should restrict the use of in-court identifications, and instead ensure that agencies conduct proper eyewitness identification procedures out of court, and then permit the eyewitness to testify concerning those procedures, rather than conduct an additional in-court identification.
Reporters’ Notes
Showup procedures are inherently suggestive, since they involve the presentation of a single witness to a suspect. As the U.S. Supreme Court has noted, “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967). Research confirms that showups pose special risks concerning accuracy. A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law & Hum. Behav. 459, 464-465 (1996); Nancy Steblay et al., Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A MetaAnalytic Comparison, 27 Law & Hum. Behav. 523, 538 (2003). One reason why showups are much less reliable is that they are not nearly as strong a memory test; there are no fillers present and the choice is a simple “yes” or “no.” Without any fillers present, in a showup an error will result in the identification of an innocent suspect, as opposed to a filler who is known to be innocent.
In Stovall, however, the Supreme Court rejected any per se rule against the use of showups. Showups are legally permitted when conducted shortly after a crime. During that brief time period, an eyewitness’s memory will be more recent and perhaps more accurate. Showup identifications are traditionally justified, despite their inherent suggestiveness, by the need to rule out or identify a fleeing felon or person located near a crime scene shortly after the commission of the crime. However, during that brief period, investigators may not have time to adequately investigate a potential suspect, nor inquire sufficiently into the viewing conditions.
Showups are commonly used. In one survey, 62 percent of agencies reported using showups. Police Executive Research Forum, A National Survey of Eyewitness Identification Procedures in Law Enforcement Agencies 48 (March 2013). There is evidence that some agencies overuse showup procedures and conduct showups when it is unnecessary to do so. Procedures for the permissibility and conduct of showups were traditionally lacking. See Nat’l Research Council of the Nat’l Acads., Identifying the Culprit: Assessing Eyewitness Identification 28 (2014) (“While some law enforcement agencies use a standard procedure with written instructions when conducting a showup, there is no indication that such procedures are used uniformly.”).
There is also troubling evidence that showups, which are already inherently suggestive, can be conducted even more suggestively than necessary. For example, officers may place the suspect with proceeds of the crime or in restraints, or officers may make suggestive remarks to the eyewitness. Some officers also have shown single photographs of suspects to an eyewitness, which is completely unnecessary, since at that point officers could use that photograph to construct a photo array. (Such a procedure occurred in Simmons v. United States, 390 U.S. 377 (1968).) Showups have been unnecessarily conducted, either using photographs or a live individual, in the days and weeks after an incident, not just in the immediate hours after a crime. Clear rules should govern when showup identifications are permitted. When showups are permitted, it is important that there be standard procedures and a clear set of standard instructions used. See NRC, Identifying the Culprit, supra, at 107 (“the committee recommends the development and use of a standard set of instructions for use with a witness in a showup.”). Several courts have further regulated showup procedures. See, e.g., State v. Dubose, 699 N.W.2d 582, 593-594 (Wis. 2005) (“We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.”); see also Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); People v. Adams, 423 N.E.2d 379, 383-384 (N.Y. 1981). These Principles recommend that state courts and lawmakers further regulate showups to permit consistent rules across a jurisdiction for their use.
The U.S. Supreme Court has held that single viewings of a suspect, which would otherwise constitute a showup, are not regulated by the Due Process Clause when officers did not intend to conduct an eyewitness identification procedure. Perry v. New Hampshire, 132 S. Ct. 716, 718 (2012). In that case, for example, the witness was detained near the crime scene, and the eyewitness looked out of her apartment, saw him there, and made an identification. Id. Officers can take measures to avert such unintended eyewitness viewing, including by not unnecessarily detaining a suspect within view of possible eyewitnesses, by instructing potential eyewitnesses not to search for suspects on their own in person or online, and by instead assuring potential eyewitnesses that any leads will be investigated and any images of possible culprits will be displayed in a proper eyewitness identification procedure. There have been cases in which witnesses searched on social media for images of the culprit and made identifications as a result. New Jersey v. Chen, 27 A.3d 930 (N.J. 2011). Officers cannot control the conditions in which such identifications are made and cannot prevent suggestive circumstances from resulting in errors, except by giving strong instructions to eyewitnesses not to engage in such searches.
Judges should not permit courtroom identifications, which are not a test of an eyewitness’s memory, and instead should rely on a recounting of the earlier confidence of the eyewitness at the time of the identification procedure. In-court identifications are, in effect, showup identifications. There are no fillers and there is no test of the eyewitness’s memory. In-court identifications are dramatic but unreliable.
Agencies should ensure through policy and practice that an eyewitness is never asked for the first time to make an identification in court, but rather, that an eyewitness identification procedure has been conducted previously. In-court identifications are highly suggestive, and several courts have restricted the use of such identifications. The Massachusetts Supreme Judicial Court and Connecticut Supreme Court have ruled that no in-court identification is permitted if an out-of-court identification was suppressed as unduly suggestive. Commonwealth v. Johnson, 45 N.E.3d 83, 92 (Mass. 2016) (“Where the suggestiveness does not arise from police conduct, a suggestive identification may be found inadmissible only where the judge concludes that it is so unreliable that it should not be considered by the jury. In such a case, a subsequent in-court identification cannot be more reliable than the earlier out-of-court identification, given the inherent suggestiveness of in-court identifications and the passage of time.”); State v. Dickson, 141 A.3d 810 (Conn. 2016). For the argument that courts should not use “independent source rules” to permit an in-court identification following suggestive out-of-court identifications, nor should they typically permit them at all, see Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451 (2012). For a ruling limiting in-court-identification use for first-time identifications, see Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014). That court explained, “Where, as here, a prosecutor asks a witness at trial whether he or she can identify the perpetrator of the crime in the court room, and the defendant is sitting at counsel’s table, the in-court identification is comparable in its suggestiveness to a showup identification.” Id. at 166; see also United States v. Archibald, 734 F.2d 938, 941, modified, 756 F.2d 223 (2d Cir. 1984) (“Any witness, especially one who has watched trials on television, can determine which of the individuals in the courtroom is the defendant . . .”). Other courts have adopted a burden-shifting approach toward in-court identifications. See State v. Hickman, 330 P.3d 551, 568 (Or. 2015) (“Courts considering the admissibility of first-time in-court identifications generally have placed the burden of seeking a prophylactic remedy on the defendant”) (citing United States v. Brown, 699 F.2d 585, 594 (2d Cir. 1983), and U.S. v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986)).