As a matter of standard practice, eyewitness identification procedures should be recorded when feasible.
Comment:
a. Recording procedures. A video and audio recording creates a record of the eyewitness identification procedure, documenting the sorts of issues discussed in these Principles, including the procedures that were followed, the confidence of any witness who makes an identification, and additional important information, such as the length of time or the ease with which the eyewitness made the identification. Such information may be quite probative in court, either to bolster the accuracy and reliability of an identification, or to identify flaws in an eyewitness’s identification. It may not be feasible, unless the officers have body cameras, to record show-up identifications conducted in the field. Recording station-house identifications typically will be feasible, so long as the police station has the necessary equipment.
Reporters’ Notes
Identifying the Culprit: Assessing Eyewitness Identification 74 (2014); see also 2019 Report of the Third Circuit Task Force on Eyewitness Identifications 19 (2019) (“the Task Force recommends that video recording of show-ups, lineups, and photo arrays be implemented by all law enforcement departments.”). There are few practical obstacles to doing so in the case of photo-array identification procedures. Field identifications, such as showups, also can be recorded, but doing so may not always be as feasible; police body cameras can make such recordings feasible in the field.
This recommendation is consistent with statements in these Principles that evidence should be recorded. It is particularly important to record eyewitness identification evidence, because many subtle features of the eyewitness identification can provide extremely important information. These features include: any extraneous, reinforcing comments made by officers; the precise time taken to make an identification; how the photographs are presented; the body language of the officers; and the words the eyewitness uses to express confidence in an identification.
One practical consideration with electronic recording of identifications is that in some cases, the confidentiality of an eyewitness should be safeguarded. In such situations, law enforcement should use procedures, such as covering the face of the eyewitness, or masking, in the video and perhaps also in the audio, to protect eyewitnesses from potential retaliation.
Judicial review of eyewitness identification evidence can be usefully informed by recordings. A recording can demonstrate that an identification procedure was conducted blind and in the appropriate manner, and it can show vividly how confident an eyewitness is. On the other hand, a recording can demonstrate that an identification was not conducted properly or that an eyewitness was uncertain. There should be no judicial presumption of regularity of adherence to eyewitness identification procedures if law-enforcement officials failed to adhere to a policy requiring video recording of eyewitness identification procedures and it was feasible to record such a procedure.