(CC 03CR1469FE; CA A132640; (Control)) (CF080348; CA A140544;) On review from the Court of Appeals.*fn1
The opinion of the court was delivered by: DE Muniz, J.
(Consolidated for opinion)
Argued and submitted November 14, 2011.
The decision of the Court of Appeals and the judgment of the circuit court in State v. Lawson are reversed and the case is remanded for a new trial. The decision of the Court of Appeals in State v. James is affirmed.
In these two criminal cases consolidated for purposes of opinion, each defendant's conviction was based, for the most part, on eyewitness identification evidence. In State v. Lawson, 239 Or App 363, 244 P3d 860 (2010), the Court of Appeals concluded that, despite the state's use of unduly suggestive pretrial identification procedures, under the test first articulated by this court in State v. Classen, 285 Or 221, 590 P2d 1198 (1979), the victim's identification of defendant Lawson had been reliable enough to allow the jury to consider it in its deliberations. In State v. James, 240 Or App 324, 245 P3d 705 (2011) -- again relying on Classen -- the Court of Appeals similarly concluded that, although the witnesses had been subject to an unduly suggestive police procedure in the course of identifying defendant James, those identifications had nevertheless been sufficiently reliable, and were therefore admissible at trial.
In the 30-plus years since Classen was decided, there have been considerable developments in both the law and the science on which this court previously relied in determining the admissibility of eyewitness identification evidence. We allowed review in each of these cases to determine whether the Classen test is consistent with the current scientific research and understanding of eyewitness identification. In light of the scientific research, which we discuss below, we now revise the test set out in Classen and adopt several additional procedures, based generally on applicable provisions of the Oregon Evidence Code (OEC), for determining the admissibility of eyewitness identification evidence.
On August 21, 2003, Noris and Sherl Hilde embarked on a weekend camping trip in the Umpqua National Forest, driving to a location where Mr. Hilde had pitched a tent the weekend before to claim the campsite. When they arrived at the campsite with their trailer, they found defendant's yellow truck in their parking space and discovered that defendant had moved into their tent. When Mr. Hilde told defendant that it was their tent, defendant apologized and told them that he thought that it had been abandoned. Defendant gathered his gear, loaded it into his truck, and moved to a vacant campsite nearby, where he stayed in view of the Hildes for about 40 minutes before leaving the area. According to Mrs. Hilde's later recollections, defendant had been wearing a dark or black shirt and a black hat with white lettering.
Later that evening, at approximately 10:00 p.m., Mrs. Hilde was shot in the chest with a large caliber hunting rifle as she stood at the window of the trailer. Mr. Hilde called 9-1-1, but was shot while speaking with the 9-1-1 operator, and he died shortly thereafter. The 9-1-1 dispatcher called back and spoke with Mrs. Hilde, who told the dispatcher that she and her husband had been shot, that she did not know who shot them, and that "they" -- referring to the shooter or shooters -- had wanted the Hildes' truck. When emergency personnel arrived, they found Mrs. Hilde lying in the trailer, critically wounded but conscious. Mrs. Hilde was transported out of the camp and transferred to an ambulance at the highway and then to a helicopter, which flew her to a hospital in Bend. An ambulance attendant testified that Mrs. Hilde was rambling and hysterical while en route to the hospital. According to the testimony of various ambulance and medical personnel, Mrs. Hilde continued to refer to the perpetrator as "they," and stated alternately at various times that the shooter was the man who had been at their campsite earlier in the day, that the pilot of the helicopter was the shooter, and that she did not know who the perpetrator was and had not seen "their" face or faces. Mrs. Hilde was near death when she arrived at the hospital, and immediately went into surgery.
The second day after the shooting, August 23, 2003, a police detective attempted to interview Mrs. Hilde in the hospital. Mrs. Hilde was heavily medicated and sedated, and could not speak due to a breathing tube in her throat. Her hands had been restrained to prevent her from attempting to remove the tube or other lines, and she could respond to questions only by nodding or shaking her head. The detective first showed Mrs. Hilde a black-and-white photo lineup that included a picture of defendant, who had come to the attention of police after he volunteered to the police that he had encountered the Hildes at their campsite on the morning of the day they were shot. When the detective asked whether she saw in the lineup the person who shot her, Mrs. Hilde shook her head no. The detective then, using leading questions, asked Mrs. Hilde whether she had seen the person who shot her earlier in the day, whether he had been in their tent, and whether he drove a yellow truck. Mrs. Hilde nodded "yes" in response to those questions.
The police again attempted to interview Mrs. Hilde approximately two weeks later, on September 3, 2003. Mrs. Hilde was still in the hospital and still medicated and in fragile condition, but she could speak. She told detectives that after her husband was shot, the perpetrator had entered the trailer and put a pillow over her face. She said that she did not know who he was, and that she could not see the man because it was dark and because of the pillow. She was apologetic that she was unable to help the police more and did not think she could identify anyone.
Approximately one month after the incident, on September 22, 2003, the police again interviewed Mrs. Hilde. At that interview, Mrs. Hilde told the detectives that, notwithstanding the pillow over her face, she had briefly seen the man who came to her trailer after the shootings. However, she was again unable to pick defendant's photograph out of a lineup. She said that the perpetrator was wearing a dark shirt and a baseball cap, but did not tell police that it was the same man that she and Mr. Hilde had encountered at their campsite earlier that day.
The police interviewed Mrs. Hilde again a week later, on October 1, 2003. At the outset of that interview, one of the detectives and Mrs. Hilde reviewed her answers to the leading questions that she had been asked at the first interview. Mrs. Hilde had no recollection of that interview. Mrs. Hilde nevertheless told the detectives that she now believed that the perpetrator was the man who had been in their camp earlier in the day. However, she "could not swear" it was him, because she claimed to have seen his face only in profile. Mrs. Hilde declined to view a profile lineup, telling the detective that she did not think she would be able to pick her attacker out of the lineup. The detectives then informed Mrs. Hilde that "the man that you've identified is the person that we have in custody," and identified defendant Samuel Lawson by name.
Some time later, a worker at the rehabilitation facility where Mrs. Hilde was convalescing showed her a newspaper photograph of defendant with a caption that identified him as the suspect who had been arrested for the shootings. Approximately one month before defendant's trial -- two years after the shootings, and unbeknownst to defendant and his lawyers -- police investigators exposed Mrs. Hilde to defendant's likeness several more times. On one occasion, the investigating detective showed Mrs. Hilde a single photograph of defendant wearing a dark shirt and a dark hat with white lettering. On another, the detective took Mrs. Hilde to the courthouse, where she personally observed defendant during a pretrial hearing. Later that day, in the detective's office, Mrs. Hilde inadvertently came across one of the earlier photo lineups she had viewed without successfully identifying a suspect from the various photographs. She was then able to pick defendant's picture out of the lineup.*fn2
At trial, Mrs. Hilde identified defendant as the man who had shot both her and her husband. She testified that, following the shootings, she had heard the perpetrator approaching the trailer. Afraid that the perpetrator would kill her if she saw him, she looked away from the door. She testified that the perpetrator had put a cushion over her face and demanded the keys to the Hildes' truck. She then testified that he walked away, presumably to look for the truck keys. Accordingly to Mrs. Hilde, when he came back, she turned her head to look at him from under the cushion and recognized him as the man who had been in their camp earlier. When asked whether she had any doubt as to her identification, Mrs. Hilde responded: "Absolutely not. I'll never forget his face as long as I live." She later added that she "always knew it was him."
Defendant moved to strike that identification on the ground that it had been tainted by suggestive police procedures. The trial court denied defendant's motion, finding that Mrs. Hilde had had significant opportunity to observe defendant in the campground on the day of the crime, and in doing so, had noted his demeanor, his "loping" walk, and that he was wearing a dark shirt and black cap with white lettering. Having found that Mrs. Hilde's in-court identification was based on her personal observations, the trial court went on to state that, under the circumstances, the reliability and probative value of that identification were questions for the jury. Ultimately, the jury convicted defendant on five counts of aggravated murder, three counts of attempted aggravated murder, and two counts of first-degree robbery.
Defendant appealed that judgment, arguing in part that Mrs. Hilde should not have been permitted to identify defendant in court because police officers had used "unduly suggestive" identification procedures prior to defendant's trial. To address that issue, the Court of Appeals relied on the two-step procedure first articulated by this court in State v. Classen. Under Classen, the Court of Appeals first was required to determine whether the underlying identification process had either been suggestive or had otherwise departed needlessly from the procedures designed to avoid such suggestiveness. If the court determined that the process had been suggestive, then the court was required to determine (1) whether the witness had based the identification at issue on an independent source separate from the suggestive elements, or (2) whether other aspects of the identification substantially excluded the risk that it had been influenced by the suggestive elements. See Classen, 285 Or at 232 (describing two-step process). To aid in the second step of that process, Classen identified a set of nonexclusive considerations to be used in determining whether an identification had a source independent of the otherwise suggestive procedure. Those factors included:
The opportunity that the witness had to clearly view the persons involved in the crime and the attention that he or she gave to their identifying features.
The timing and completeness of the description given by the witness after the event.
The degree of certainty expressed by the witness in describing the persons involved in the crime and making subsequent identifications.
The lapse of time between the original observation and the subsequent identification.
The Court of Appeals concluded that the process leading to Mrs. Hilde's identification of defendant had, indeed, been suggestive. Weighing the factors set out in Classen, it nevertheless held that, under the totality of the circumstances, her identification of defendant had been independent of the suggestive procedures. As a result, the Court of Appeals concluded that the trial court had correctly determined that the reliability of Mrs. Hilde's identification of defendant was a question properly left to the jury.
Shortly before 11:00 on a December morning in 2006, Pendleton Police Officer Gomez responded to a theft complaint at a local Safeway store. The thieves had left before Officer Gomez arrived, but Officer Gomez interviewed store employees and obtained descriptions of the two suspects, which he memorialized in an incident report filed later that day. According to one store clerk, while walking down an aisle in the store, he had heard the "clanging" of bottles and then came upon two men, a "large Indian" and a "small Indian," stuffing 40-ounce bottles of beer into a backpack. The clerk went to alert the assistant manager, pointing the pair out to him as they were leaving the store. The two Safeway employees pursued the two perpetrators, yelling for them to stop. The smaller man exited the store and waited outside while the larger man turned to the employees and, blocking the door, prevented them from pursuing the smaller man. According to the store clerk, when he tried to push past the larger man, the larger man "went after" the clerk, "got in his face," and pushed him back. The larger man also attempted to punch the clerk but missed, striking the assistant manager instead. The employees then retreated, and the two suspects ran across the parking lot, got into a gray van, and drove away.
When Officer Gomez arrived at the crime scene, the clerk and the assistant manager related the incident set out above, describing the two thieves as a large male and a small male, both Native American, and both in their mid-20s. According to the Safeway employees, the larger suspect was between six feet and six feet two inches tall, weighed approximately 220 pounds, and wore a white tank top and baggy blue jeans.
The smaller suspect, they said, was approximately five feet tall, weighed about 110 pounds, and wore a long black coat with a hood, baggy blue pants, and a backpack. Although there were surveillance cameras in the store, the employees informed Officer Gomez that none of the cameras worked.
Later that day, Officer Gomez observed two men at a nearby fast food restaurant that he believed matched the descriptions given earlier by the Safeway store employees. The taller of the men was defendant James; the shorter man was Manuel Guerrero. Both men appeared to be inebriated. Officer Gomez approached the two men and questioned them about the incident at Safeway. Both men denied having been to Safeway or having driven a motor vehicle at any time that day. With Guerrero's consent, Officer Gomez searched Guerrero's backpack and discovered one unopened 40-ounce bottle of Steel Reserve 211 malt liquor and a denim jacket, which defendant put on. Officer Gomez asked defendant and Guerrero if they would be willing to go to the Safeway with him to "clear the matter up." Both men consented and were handcuffed and driven to the Safeway store. A second officer, who had come to assist Officer Gomez, drove ahead to prepare for the pending identification. When Officer Gomez arrived at the Safeway just after 4:00 p.m., the clerk and the assistant manager were walking out of the store with the second officer.*fn3 As the employees approached, Guerrero stood handcuffed by the police cars while defendant remained seated in the back seat of one of the cars with the door open; his hands were cuffed behind his back and he was wearing his denim jacket and a pair of sunglasses. Officer Gomez's report contained no details regarding the identification process, stating only that the employees "both positively identified the subjects as the persons who stole the beer." However, at defendant's suppression hearing nearly two years later, Officer Gomez testified that he had asked the employees something like, "Is this them?," after which the two employees "walked right up" to Guerrero and then looked in through the open car door at defendant, "immediately" identifying both men as the perpetrators of the earlier theft.
In August 2008, defendant was charged with second-degree robbery, fourth-degree assault, carrying a concealed weapon, harassment, and third-degree theft. Before trial, defendant filed a motion to suppress both the out-of-court identification and any in-court eyewitness identification that might be made by the employees, arguing that the identification procedure in the Safeway parking lot was unduly suggestive and unreliable, violating federal due process protections and this court's ruling in Classen. At the suppression hearing, Officer Gomez testified that, when he first spoke to the store employees, they were "pretty adamant" that they would be able to identify the perpetrators, noting that the pair were "funny looking because [one perpetrator] was so big and [the other] was so small, and so by clothing, size." Officer Gomez described the circumstances of the identification as follows:
"I took Mr. Guraro [sic] out of the car. Officer Byram at the time had went ahead of me to Safeway to have [the employees] meet us outside. I pulled to the front of the store. As I was exiting Mr. Guraro [sic], I had him out of the car; both [of the employees] walked up to my patrol car and identified Guraro [sic] immediately, that's him. Looked in the backseat, that's him, and identified both of them as being the persons who stole the beer and assaulted them."
Officer Gomez testified further that he had photographed each suspect shortly after the identification, and he identified two photographs entered into evidence as the pictures he had taken. The photograph of defendant showed defendant with a moustache and a small goatee, wearing baggy blue jeans with several red bandanas hanging down from the beltline, a white tank top, a blue denim jacket, and sunglasses. The other photograph showed Guerrero wearing black pants, a black hooded sweatshirt, and a white T-shirt.
Defendant argued that the showup identification procedure was unduly suggestive, noting that defendant and Guerrero were the only suspects presented to the witnesses, the second officer may have prompted the witnesses prior to their identification, and that defendant was presented in handcuffs, in the back seat of a police car, wearing sunglasses that obscured his facial features. Moreover, defendant contended that, given the suggestiveness of the process, there was insufficient indicia of reliability to substantially exclude the risk of misidentification, pointing out that (1) Native Americans make up a large portion of the Pendleton community, which borders a reservation; and (2) the witnesses' description of the perpetrators was vague, focusing on generic items of clothing, and omitting key details like the red bandanas hanging from defendant's beltline and defendant's hair color, hairstyle, and facial hair.
Applying the two-part process set out in State v. Classen,the trial court denied defendant's motion to suppress the identifications. The trial court found that the identification procedure was, indeed, suggestive under the first part of the Classen inquiry:
"First, the Defendants were cuffed and in police custody. Second, only [Mr. Guerrero] was actually taken from the vehicle. * * * Defendant, Mr. James, remained in the car. And his appearance was thereby limited to a degree by the observing witnesses. Third, the State produced no evidence as to what the witnesses were told before the show-up."
The court nevertheless concluded that the identification had been based on sources independent of the suggestive procedures:
"First, the two witnesses got a very good look at the Defendants, and in particular Defendant James. The witnesses indicated they were confident they could identify the Defendant if they saw him again. And this is reasonable in light of the fact that they actually got into a physical confrontation with this Defendant, Mr. James, including the witnesses being shoved and one witness being struck in the face by the suspect, Mr. James.
"Secondly, the witnesses gave Officer Gomez a very good description of the suspects. One was quite large. One was quite small. They both appeared to be Indian. Their clothes were identified to considerable specificity. They indicated that the witnesses [sic], when they left, had stolen beer of an unusual size; 40-ounce bottles, and unusual brands, at least in this Court's experience.
"One particular was mentioned as Steel Reserve 211. These were in a backpack. They indicated the Defendant James was wearing a white tank top. And the Court heard evidence that this was in mid-December and that is very unusual wear in December in Pendleton in that Pendleton is known to be quite cold.
"Third, five hours later when Officer Gomez had contact with the Defendants on an unrelated item, he immediately knew that the Defendants were likely to be suspects in the incident at the local Safeway store. Officer Gomez then found a bottle of beer, a 40-ounce bottle of beer [of] the correct brand, Steel Reserve 211[,] in a backpack that was in the possession of the Defendants.
"And the Court notes that that backpack had a jacket which the Defendant claimed was his, and in fact put it on, as well as sunglasses which he put on. And fourth, at the show-up confrontation with the witnesses, the witnesses firmly and immediately identified both Defendants.
"Therefore, given the totality of the circumstances in this particular case, I am satisfied that the suggestive show-up confrontation did not cause or contribute to the witness's identification of Defendant James. The surrounding circumstances were strong and in place before the show-up identification. Motion to suppress is denied."
Defendant's case was tried to a jury in October 2008. At trial, Officer Gomez and the clerk from the Safeway store described the identification procedure, and the clerk went on to identify defendant as the larger of the two perpetrators. The jury subsequently found defendant guilty of second-degree robbery, harassment, and third-degree theft; the trial court sentenced defendant to a mandatory minimum sentence of 70 months' incarceration. Defendant appealed his conviction, arguing that the identification evidence was unreliable and should have been suppressed. The Court of Appeals affirmed, holding that the identification evidence was properly admitted under Classen.
In seeking review, defendant James directly, and the amici supporting defendant Lawson's petition for review, both urge this court to revisit Classen and with it, the procedures for determining the admissibility of eyewitness identification. Having accepted that invitation, we begin our analysis by examining Classen and its legal underpinnings.
In State v. Classen, this court acknowledged that "the unreliability of eyewitness identification under suggestive circumstances is widely recognized, and that the procedures used to minimize this unreliability bear on the admissibility of evidence of such identification."
285 Or at 232. Deciding the admissibility of such evidence, this court continued, required a two-step process:
"As a practical matter, in the context of a motion by a defendant to suppress identification evidence on the ground that it is the product of a suggestive procedure, the decision on its admissibility involves two steps. First, the court must determine whether the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness. If so, then the prosecution must satisfy the court that 'the proffered identification has a source independent of the suggestive confrontation' or photographic display, or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure."
Id. (footnote and internal citation omitted).
Classen listed five nonexclusive factors for courts to consider in determining whether an identification had been made independent of suggestive procedures:
"These [factors] include the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification."
Id. at 232-33. Classen emphasized, however, that those factors were not intended to be exhaustive:
"These are not to be taken as a mechanical checklist of 'constitutional' facts. Obviously other facts may also be important, such as the age and sensory acuity of the witness, or a special occupational concern with people's appearance or physical features, or the frequency of his or her contacts with individuals sharing the general characteristics of the person identified[.]"
Id. at 233 (internal citation omitted).The court made it clear that, in considering those and other potentially relevant factors, "the ultimate issue [is] whether an identification made in a suggestive procedure has nevertheless been demonstrated to be reliable despite that suggestiveness." Id. (footnote omitted).
In establishing the two-step process described above -- particularly the factors used in determining whether an identification procedure had been suggestive -- Classen relied on the United States Supreme Court's 1977 decision in Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977). In Manson -- like Classen -- the Court determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony. In Manson, however, the Supreme Court articulated that truism as a matter of fundamental fairness under the Due Process Clause of the Fourteenth Amendment. Classen, in contrast, was decided as matter of Oregon evidence law, see State v. Johanesen, 319 Or 128, 130, 873 P2d 1065 (1994) (so noting), a difference that this court took pains to recognize, pointing out that "the Supreme Court does not purport to make the law of evidence for the states. The Court's decisions under the 14th amendment only pronounce constitutional tests which a state's rules of evidence, and their application in a particular case, may not fail; but these decisions assume that there is an applicable state rule in advance of the issue of its constitutionality. The rules governing the admissibility of evidence in state courts are the responsibility of the states before a Supreme Court decision and remain so afterwards, within the constitutional limits laid down in the decision.
"Evidence law has long provided for excluding certain evidence as a class when its questionable reliability vitiates the value of its possible truthfulness in the particular case, apart from any question of constitutional law."
Classen, 285 Or at 226 (citations omitted).
Under the rules of evidence generally in use among the states, relevant evidence may be excluded at trial if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See, e.g., OEC 403 (so stating). In Perry v. New Hampshire, 565 US ___, ___, 132 S Ct 716, 181 L Ed 2d 694 (2012), the Supreme Court recently recognized that that evidentiary rule is an important safeguard against unreliable eyewitness identification evidence. In the two cases presently before us, each defendant contends that, under Classen, the eyewitness identification evidence should not have been admitted at trial. In addressing that question in these cases, we have decided that, in light of the recent scientific research surrounding eyewitness identifications, it is important for this court to revisit and augment the process outlined in Classen. We turn to those inquiries.
III. FACTORS KNOWN TO AFFECT THE RELIABILITY OF EYEWITNESS IDENTIFICATION EVIDENCE
Since 1979 -- the year that this court decided Classen --there have been more than 2,000 scientific studies conducted on the reliability of eyewitness identification. Amici curiae in these two cases-- particularly the Innocence Network and a group of academics and university professors who have conducted, published, and reviewed a wide range of scientific research on the subject of eyewitness identification -- submitted extensive data and analysis to this court regarding many of those studies.*fn4
Based on our extensive review of the current scientific research and literature, we conclude that the scientific knowledge and empirical research concerning eyewitness perception and memory has progressed sufficiently to warrant taking judicial notice of the data contained in those various sources as legislative facts that we may consult for assistance in determining the effectiveness of our existing test for the admission of eyewitness identification evidence. See State v. O'Key, 321 Or 285, 309 n 35, 899 P2d 663 (1995) (noting that "[t]he validity of proffered scientific evidence * * * is a question of law" to be determined by judicial notice of legislative facts submitted to the court); see also State v. Clowe, 310 Or 686, 692 n 7, 801 P2d 789 (1990) ("Facts utilized by a court to 'help [it] to determine the context of the law and policy and to exercise its judgment or discretion in determining what course of action to take' have been described as judicial notice of legislative facts." (alteration in original)).
The scientific literature generally divides the factors affecting the reliability of eyewitness identifications into two categories: system variables and estimator variables. System variables refer to the circumstances surrounding the identification procedure itself that are generally within the control of those administering the procedure. Estimator variables, by contrast, generally refer to characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors. We find that construct useful and employ it here in summarizing the potentially relevant issues that emerge from the scientific research. Our purpose in summarizing the scientific research is to determine whether, in light of that research, the test established in Classen adequately ensures the reliability of particular eyewitness identification evidence that has been subjected to suggestive police procedures, and, ultimately, whether a factfinder can properly assess and weigh the reliability of eyewitness identification evidence. In identifying and describing the variables identified in the research, however, we do not seek to enshrine those variables in Oregon substantive law. We recognize that the scientific research is "probabilistic" -- meaning that it cannot demonstrate that any specific witness is right or wrong, reliable or unreliable, in his or her identification. Rather, we believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness. We also recognize that, although there now exists a large body of scientific research regarding eyewitness identification, the research is ongoing. Therefore, our acknowledgment of the existence of that research in these cases is not intended to preclude any party in a specific case from validating scientific acceptance of further research or from challenging particular aspects of the research described in this opinion.
The following is a list of the system and estimator variables identified in the research, accompanied by a very brief description of each variable. A more complete description of each variable and a summary of the scientific research reviewed by this court in these cases are set forth in the appendix to this opinion.
Ideally, all identification procedures should be conducted by a "blind" administrator -- a person who does not know the identity of the suspect. In police lineup identifications, lineup administrators who know the identity of the suspect can consciously or unconsciously suggest that information to the witness.
2. Preidentification Instructions
The likelihood of misidentification is significantly decreased when witnesses are instructed prior to an identification procedure that a suspect may or may not be in the lineup or photo array, and that it is permissible not to identify anyone.
An identification procedure is essentially an informal and unscientific experiment conducted by law enforcement officials to test their hypothesis that a particular suspect is, in fact, the perpetrator that they seek. The known-innocent subjects used as lineup fillers should be selected first on the basis of their physical similarity with the witness's description of the perpetrator; if no description of a particular feature is available, then the lineup fillers should be chosen based on their similarity to the suspect.
4. Simultaneous versus Sequential Lineups
In a lineup procedure in which the witness is presented with each individual person or photograph sequentially, the witness is less able to engage in relative judgment, and thus is less likely to misidentify innocent suspects. In traditional identification procedures, police display a number of persons or photographs simultaneously to an eyewitness. Witnesses permitted to view all the subjects simultaneously have a tendency to make a "relative judgment" -- choosing the person or photograph that most closely resembles the perpetrator from among the other subjects -- as opposed to making an "absolute judgment" -- comparing each subject to their memory of the perpetrator and deciding whether that subject is the perpetrator.
A "showup" is a procedure in which police officers present an eyewitness with a single suspect for identification, often (but not necessarily) conducted in the field shortly after a crime has taken place. Police showups are generally regarded as inherently suggestive -- and therefore less reliable than properly administered lineup identifications -- because the witness is always aware of whom police officers have targeted as a suspect. When conducted properly and within a limited time period immediately following an incident, a showup can be as reliable as a lineup. A showup is most likely to be reliable when it occurs ...