Information used by the Commission in reaching its recommendations included the U.S. Department of Justice research report, Eyewitness Evidence, A Guide for Law Enforcement (October 1999); the New Jersey Division of Criminal Justice training manual, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (August 2001); a survey and study of the identification procedures currently followed by North Carolina's law enforcement; and presentations and consultations by experts ....
[Disclosure: I was a member of the task force that created the D.O.J. research report, Eyewitness Evidence, A Guide for Law Enforcement (October 1999). The report was published by the the National Institute of Justice, which is the research arm of the Justice Department. The task force was mostly comprised of police, prosecutors and psychological researchers, but it did include a small number of defense attorneys. We met for two years in cities around the country to draft the report. Subsequent task forces created training manuals to teach police departments around the country how to use the guidelines.]
As widely accepted as the guidelines are, it is important to remember that they are not binding on law enforcment. They are "best practices."
The recommendations cover the most important aspects of "best practices" in witness identification procedures; however, they leave the details of implementation of these practices to the discretion of law enforcement. The recommendations made herein are not intended to create, do not create, and may not be relied on to create, any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Jurisdictional or logistical conditions may preclude the use of particular procedures.
According to the Greensboro, NC News Record, North Carolina state law does not specify how lineups are to be conducted.
Back to the "foils" I mentioned above, also called "fillers." As I wrote in this 1997 article, Could This Happen to Your Spouse or Child?
In any lineup or photo spread procedure, the suspect must not stand out. There must be fillers and distracters, meaning innocent persons who match the description of the suspect.
The North Carolina Actual Innocence Commission guidelines, linked above, recommend:
e) Include a minimum of seven fillers (non-suspects) per photo identification procedure and five for live lineups.
... g) Fillers should resemble the witness's description of the perpetrator in significant features (face, profile, height, weight, build, posture, gait, voice, specific articles of clothing, etc.) or, in the case where a composite is used, based on their resemblance to a composite. If the perpetrator was described as having an unusual identifying mark, all fillers should have similar markings or all lineup members should have similar coverings over the described area.
So, was the Duke lacrosse players' accuser shown only photos of Duke lacrosse players? If so, it's a bad lineup. Was she shown the photos one at a time or in batches? If the photos were not shown one at a time, called sequentially, the lineup is suspect. Was the accuser told before looking at any pictures that the suspect might or might not be in the lineup? Was the person who administered the lineup unaware which photo was the suspect? If not, it's again a bad line-up.
Does this mean the accuser's identification will be suppressed in court? No. But it does mean the defense will use a psychological expert like Gary Wells (who along with Elizabeth Loftus was the expert I used in the McVeigh trial) to explain the principles of eyewitness identification and memory to the jury so they can determine what weight to place on the accuser's identification.
Update: The defense received a copy of the lineup details Friday. Sure enough, the only photos shown were of Duke lacrosse players.
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