EyeWitness Identification

Policy & Procedures                 No. 1.09
                                  Subject:
                Eyewitness Identification
                                  Issuing Authority:                                       Effective Date:   Review Date:
                     Chief of Police                       12/13/2013   09/25/2023
                                                                                 References:

 Review
 Revision   11/24/2016
 Reissued   04/12/2018
 Dates:     07/25/2020

CALEA Standards: 42.2.11 42.2.12
                      BACKGROUND:

The identification of a suspect by an eyewitness can be an important component of a criminal
investigation but can be equally significant in clearing an innocent suspect. Many people who
have been convicted of serious crimes, only to later be exonerated by scientific evidence, were
originally convicted based in large part on mistaken identification by a witness. Eyewitness
misidentification is the single greatest cause of wrongful convictions nationwide, playing a role
in over 75% of convictions overturned through DNA testing. The Canton Police Department
recognizes that it is as much the responsibility of the police to protect the innocent from
conviction as it is to assist in the conviction of the guilty.

The identification of criminal offenders must be approached with extreme caution as the court
may exclude eyewitness evidence, if it determines that police methods were unnecessarily
suggestive.

I.    POLICY:  42.2.11
          It is the policy of the Canton Police Department that:

1.      Identification procedures be conducted in a non-prejudicial and non-suggestive manner,
2.     Eyewitnesses will be given specific instructions prior to being shown a suspect 42.2.11 D
3.     Photo arrays and line-ups will be conducted using sequential rather than simultaneous
        presentation; and
4.     Photos arrays, line-ups and voice identifications will be conducted using blind
       administration when feasible.

II.   DEFINITIONS:

Show Up: The presentation of one suspect to an eyewitness shortly after the commission of a
crime. 42.2.12 A

Field View: The exposure of an eyewitness to a group of people in a public place on the theory
that the subject may be among the group. A field view differs from a show-up in that it may be

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conducted well after the commission of the crime and may be conducted with or without a
suspect in the group.

Photo Array: showing of photographs of several individuals to an eyewitness for the purpose of
obtaining identification.

Line-up: The live presentation of a number of people to an eyewitness for the purpose of
obtaining identification. A line-up differs from a field view in that it is conducted in a controlled
setting, such as a police station, a known suspect is in the mix, and the participants are aware that
an identification procedure is being conducted.

Voice Line-up: A procedure in which a witness is permitted to hear the voices of several people
for the purpose of obtaining an identification of a suspect’s voice.

Blind Administration: The procedure by which an officer who does not know the identity of a
suspect is used to present a photo array, line-up, or voice identification, to avoid even the
suggestion of undue influence over the witness’ choice. This technique has been recommended
by the National Institute for Justice, and is intended to ensure that the witness does not interpret a
gesture or facial expressions by the officer as an indication as to the identity of the suspect. The
technique also allows the prosecution to demonstrate to the judge or jury at trial that it was
impossible for the officer showing the photographs to indicate to the witness, intentionally or
unintentionally, which photograph he/she should select.

III.  PROCEDURES:

Right to Counsel During Identification Procedure

Once a suspect has been arraigned or indicted, his/her right to have counsel present at an in-
person identification procedure attaches. No right to the presence of counsel exists simply
because a complaint has been filed, even if an arrest warrant has issued.

No right to counsel attaches for non-corporeal identification procedures, such as those involving
photographs or composite drawings, whether conducted before or after the initiation of
adversarial criminal proceedings.

General Considerations

Due process requires that identifications be conducted in a fair, objective, and non-suggestive
manner. 42.2.12 G Due process is violated when identification procedures arranged and/or
conducted by the police are unnecessarily suggestive and conducive to irreparable mistaken
identification.

Prior to conducting an identification procedure, officers should take a statement from the witness
and document a full description of the offender in a police report. 42.2.12 G

If practicable, the officer should video and audio record the procedure and the witness’ statement
of certainty. 42.2.11 B   If not, the officer should jot down the witness’ exact words and

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incorporate them into his/her report.  If a photo array is shown to the witness, the witness should
be asked to initial and date the front of the photograph selected.

A police report of every show-up, photo array, line-up or voice identification procedure, whether
an identification is made or not, shall be submitted. 42.2.11 G, 42.2.12 G The report shall
include a summary of the procedure, the persons who were present for it, instructions given to
the witness by the officer (this should be accomplished by submitting the appropriate witness
instruction form), any statement or reaction by the witness, and any comments made by the
witness regarding the identification procedure.

                               Witness Instructions

Whenever practicable, an officer conducting an identification procedure will read the witness a
set of instructions from a departmental form (show-up card, or photo array or line-up instruction
form). 42.2.11 D, 42.2.12 D  Those instructions should include the following:
1.    The person who committed the crime may or may not be the person, or in the set of
       photographs, you are about to view.

2.    You should remember that it is just as important to clear innocent persons from suspicion
       as to identify guilty parties.

3.    The individuals you view may not appear exactly as they did on the date of the incident
       because features such as head and facial hair are subject to change. (This instruction not
        for use during show-ups or voice identifications.)

4.     Regardless of whether or not you select someone, the police department will continue to
        investigate the incident.

5.    The procedure requires the officer to ask you to state, in your own words and without
       using a numerical scale, how certain you are of any identification.

6.       If you do select someone, please do not ask the officer questions about the person you
have selected, as no information can be shared with you at this stage of the investigation.

7.     Regardless of whether you select a person, please do not discuss the procedure with any
       other witnesses in the case.

Show-ups

1.    Show-up identification procedures should only be used soon after a crime has been
       committed, typically within two hours, or under exigent circumstances, such as the near
       death of the only available witness. Show-ups should be conducted live whenever
       possible and not photographically. Officers should not attempt to obtain identifications
       using RMV photos on their cruiser MDT’s, unless a compelling reason or emergency
        exists.  42.2.12 A

2.    When a show-up is arranged in an emergency situation, where either a witness or a victim
         is in imminent danger of death or in critical condition in a hospital, and the circumstances

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are such that an immediate confrontation is imperative, the emergency identification
       procedure shall be conducted in a non-suggestive manner.

3.     Every show-up must be as fair and non-suggestive as possible.  Specifically, if the
       suspect is handcuffed, he/she should be positioned so that the handcuffs are not visible to
       the witness. Unless it is necessary for the safety of the officers or others, the suspect
       should not be viewed when he/she is inside a police vehicle, in a cell, or in jail clothing.

4.     Detaining a person who fits the description of a suspect in order to arrange a show-up is
       lawful where the officer has reasonable suspicion that the suspect has committed a crime,
      even if probable cause to arrest has not yet developed.

5.       If the witness fails to make a positive identification and sufficient other evidence has not
       developed to provide probable cause to make an arrest, the suspect must be permitted to
        leave. His/her identity should be recorded and included in the officer’s report.

6.        If a suspect is stopped within a short time after the commission of the crime, he/she may
      be taken to a location where he/she can be viewed by a witness for possible
        identification; or, he/she may be detained at the site of the stop and the witness taken
        there to view him/her. Transporting the witness to the site of the stop is preferred if
       circumstances permit.

7.     Suspects should not be brought into a crime scene as contamination may result. For the
      same reason, clothing articles found at the crime scene should not be placed on or in
       contact with a suspect. A suspect should not be brought back to the home of a victim or
       witness unless that was the scene of the crime.

8.     Police officers must not do or say anything that might convey to the witnesses that they
      have evidence of the suspect’s guilt. Officers should turn down their radios so that the
       witness they are transporting does not pick up information about the stop of the suspect.
       42.2.11 F, 42.2.12 F

9.    The suspect should be viewed by one witness at a time and out of the presence or hearing
       of other witnesses. Witnesses who have viewed the suspect should not be permitted to
      communicate with those who have not. 42.2.11 C, 42.2.12 C

10.   Where multiple witnesses are available to identify the subject, officers should permit the
       subject to be identified by only one or two. Once one or two witnesses have identified
       the subject during a show-up, further identifications should be attempted by means of a
       photo array or line-up.  42.2.11 C, 42.2.12 C

11.    Officers may transport victims or witnesses in police vehicles to travel through the area
      where a crime has just occurred in order for them to attempt to point out the perpetrator.
       42.2.12 B While checking the area, officers must be careful not to make any statements
       or comments to the witnesses which could be considered suggestive. 42.2.12 F

12.    Officers should make written notes of any identification and any statements made by
       witnesses at the time of confrontation with the suspect. Once a witness has indicated
        his/her opinion regarding the identity of the subject, the officer should ask the witness

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how certain he/she is of the identification. 42.2.11 E, 42.2.12 E,G Officers should ask
       the witness not to use a numerical scale, but rather to indicate certainty in his/her own
       words. All statements by the witnesses should be incorporated into the officers’ report.

IV.   PREPARING A PHOTO ARRAY     42.2.11 A

1.     Photo arrays should be shown to witnesses as soon as possible after the commission of a
       crime.

2.     Include one suspect and seven fillers (non-suspects) in each array. Mark the back of each
       photo with numbers one through eight.

3.     Try to use photographs of the same size and basic composition. Do not include more than
      one photograph of the same person.

4.    Use a photo of the suspect that closely depicts his/her current appearance.

5.      Select fillers who generally fit the witness’ description of the offender. Avoid fillers who
       so closely match the suspect that a person familiar with the suspect would have difficulty
       distinguishing the filler.

6.     Ensure that photos bear no markings indicating previous arrests.

7.     Create a consistent appearance between the suspect and fillers with respect to any unique
       or unusual feature such as facial scars or severe injuries by adding or covering the
        feature.

8.    Once the array has been assembled, examine it to ensure that nothing about the suspect’s
       photo makes him/her stand out.

9.     Consider changing the order of photos from one witness to the next, or when a witness
       asks to see the array a second time.

10.   When showing a witness an array containing a new suspect, avoid using fillers from a
       previous array already shown to the witness.

V.   SHOWING A PHOTO ARRAY

General Guidelines

1.    The procedure must be conducted in a manner that promotes reliability, fairness and
        objectivity.

2.    Allow each witness to view the photographs independently, out of the presence and
       hearing of the other witnesses. 42.2.11 C

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3.     Never make suggestive statements that may influence the judgment or perception of the
       witness. 42.2.11 F

4.    The investigating officer of the blind administrator should carefully instruct the witness
      by reading from a departmental Photo Array Instruction Form, 42.2.11 D and the
       witness should be asked to sign the form indicating that he/she understands the
        instructions. The investigating officer and the administrator should also sign and date the
       form.

5.    The administrator should show the photographs to a witness one at a time and ask the
       witness whether or not he/she recognizes the person.

6.    When the witness signals for the next photograph, the administrator should move the first
       photograph so that it is out of sight and ask the witness whether he/she recognizes the
       next photograph.

7.    The procedure should be repeated until the witness has viewed each photograph. If the
       witness identifies a subject before all the photographs have been viewed, the
       administrator should remind the witness that he/she is required to show the rest of the
       photographs.

8.       If the witness fails to make identification, but asks to view the array a second time, the
       administrator managing the identification should ask the witness if he/she was able to
      make identification from the original viewing. If the witness is unable to make
        identification, but feels that it would be helpful to repeat the procedure, then it is
       permissible to show the entire array a second time. The order of the photographs should
      be shuffled before the array is shown for the second time. An array should not be shown
      more than twice.

9.       If the witness identified the suspect, the administrator should ask the witness how certain
       he/she is of the identification. Officers should ask the witness not to use a numerical
        scale, but rather his/her own words. 42.2.11 E

10.   The photo array should be preserved as evidence in the same configuration as when the
        identification was made.

Blind Administrator

1.   A second officer, known as the blind administrator, who does not know which
       photograph depicts the suspect should actually show the photographs.

2.     For the reasons above, the officers should explain to the witness that the officer showing
       the array does not know the identity of the people in the photographs.

3.    The investigating officer should leave the room while the array is being shown by the
       blind administrator.

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Investigating Officer as Administrator

1.       If the use of a second officer is not practicable, the officer showing the array should
      employ a blind technique. In other words he/she should show the array in such a manner
       so the he/she cannot tell when the witness is viewing a photograph of the suspect.

2.     This can be achieved by placing each photo in a folder and shuffling the order before
       handing each folder to the witness. The witness can then look at the photo and the officer
        will not see which photo they are looking at. Another method is to use a computer
      program that randomly shows the witness a photo.

VI.   LINE-UPS

1.     Line-ups shall be conducted under the direction of a supervisory officer, or in his/her
       absence, the Chief of Police and, when feasible, after consultation with the District
       Attorney's Office.

2.   A suspect cannot be detained and compelled to participate in a line-up without probable
       cause to arrest.  If a suspect refuses to participate in a line-up, the District Attorney’s
       Office may be asked to apply for a court order to compel the suspect to cooperate.

3.     Before any suspect who has been arraigned or indicted is shown to eyewitnesses in a line-
      up or other live identification procedure, he/she must be informed of his/her right to have
      an attorney present at the line-up and of his/her right to be provided with an attorney
       without cost if he/she is unable to afford such legal counsel. Unless a valid waiver is
        voluntarily and knowingly made, in writing if possible, no such identification may
       proceed without the presence of the suspect's attorney.

4.      Select a group of at least five fillers who fit the description of the subject as provided by
       the witness(es). Because line-ups will be conducted by a blind administrator (an officer
     who does not know the identity of the suspect), the fillers selected should not be known
        to the blind administrator. In selecting line-up fillers, abide by the guidelines for photo
       array fillers as described above.  42.2.11 A

5.     All persons in the line-up should carry cards that identify them only by number and
       should be referred to only by their number. As with photo arrays, each witness must
      view the line-up independently, out of the presence and hearing of the other witnesses.

6.    The investigating officer should explain to the witness that a second officer (the blind
       administrator) will be conducting the line-up, and that he/she does not know the identities
       of the people participating in the line-up. 42.2.11 D

7.    The investigating officer should carefully instruct the witness by reading from a
       departmental Line-up Instruction Form, and the witness should be asked to sign the form
        indicating that he/she understands the instructions. The officer should also sign and date
       the form. 42.2.11 D

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8.    The investigating officer should leave the room while the blind administrator conducts
       the line-up.

9.    The line-up should be conducted so that the suspect and fillers do not actually line up, but
        rather so that they are displayed to the witness one at a time. This can be accomplished
        either by having them stand with their back to the witness and then face the witness one
        at a time, or by having them enter the room individually and leave before the next one
        enters.

10.   The procedure for showing the participants to the witness and for obtaining a statement of
        certainty is the same as for photo arrays.  If practicable, the officer should record the
       procedure. 42.2.11 E

11.   When an attorney for the suspect is present, the attorney should be permitted to make
       reasonable suggestions regarding the composition of the line-up and the manner in which
           it is to be conducted. Any suggestions made by the suspect's attorney should be included
       as part of the line-up report.

12.   Allow counsel representing the accused sufficient time to confer with his/her client prior
        to the line-up. Once the line-up is commenced, attorneys should function primarily as
       observers and he/she should not be permitted to converse with the line-up participants, or
       with the witnesses, while the line-up is underway. The concept of blind administration
       requires that no one be present who knows the identity of the suspect. For this reason,
       the attorney should leave the room before the line-up begins.

13.   The suspect's attorney is not legally entitled to the names or addresses of the witnesses
       viewing a line-up if the suspect has not yet been arraigned or indicted.  If an attorney in
       such a situation insists on having information about line-up witnesses, advise him/her to
        direct his/her request to the District Attorney's Office.

14.    During a line-up, each participant may be directed to wear certain clothing, to put on or
       take off certain clothing, to take certain positions or to walk or move in a certain way.  If
        officers are to ask the participants to wear an article of clothing, they must guard against
       circumstances where the article only fits the suspect. All line-up participants shall be
       asked to perform the same actions.

15.    Line-up participants must not speak during the line-up.  If identification of the suspect’s
       voice is desired, a separate procedure must be conducted. (See section on voice
        identification below.)

16.    After a person has been arrested, he/she may be required to participate in a line-up
       regarding the crime for which he/she was arrested.  After arrest, a suspect may lawfully
       refuse to participate in a line-up only if he/she has a right to have counsel present (post
       arraignment/indictment) and the counsel is absent through no fault of the suspect or
        his/her attorney.

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VII.  VOICE IDENTIFICATION

1.     Although considerably less common than visual identifications, voice identifications may
      be helpful to criminal investigations where the victim or other witness was blind, the
       crime took place in the dark, the subject was masked, the witness’ eyes were covered by
       the perpetrator, or they were never in the same room with the perpetrator but heard
        his/her voice.  If officers wish to conduct a voice identification procedure with a witness
     who also saw the subject, they must first consult with a supervisor, or in his/her absence
       the Chief of Police, and when feasible, the District Attorney's Office.

2.    As with any in-person identification or confrontation, if the suspect has been arraigned or
        indicted, he/she has a right to the presence of counsel at the voice identification
       procedure.

3.    Where voice identification is attempted, the following procedures should be employed to
       the extent possible:

a.    As in a line-up, there should be at least six persons whose voices will be listened to by
       the witness; one-on-one confrontations should be avoided. Because line-ups will be
       conducted by a blind administrator, who does not know the identity of the suspect, the
         fillers should not be known to the blind administrator, and officers should abide by the
       guidelines for photo array and line-up fillers as described above;

b.    The suspect and other participants shall not be visible to the witness; this can be done by
       on, or by similar means;

c.     All participants, including the suspect, shall be instructed to speak the same words in the
      same order;

d.    The words recited by the participants shall not be the ones spoken by the offender during
       the crime; the line-up participants should speak neutral words in a normal tone of voice;

e.    When both a visual and voice line-up are conducted, the witness should be informed that
       the line-up participants will be called in a different order and by different numbers;

f.       If there are two or more suspects of a particular crime, present each suspect to witnesses
        in separate line-ups. Different fillers should be used to compose each line-up.

4.    As with any identification procedure, police officers should avoid any words or actions
        that suggest to the voice witness that a positive identification is expected or who they
       expect the witness to identify.

5.    The investigating officer should carefully instruct the witness by reading from a
       departmental Voice Identification Line-up Instruction Form, and the witness should be
       asked to sign the form indicating that he/she understands the instructions. The officer
       should also sign and date the form.  If practicable, the officer should record the
       procedure. 42.2.11 D

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6.     Adhere to the principles of blind administration as described above. As is the case with
       photo arrays and line-ups, the investigating officer should leave the room while the blind
       administrator conducts the procedure.

VIII. COURTROOM IDENTIFICATION

       Prior to conducting any courtroom identification procedure, officers should consult the
        District Attorney’s Office. The same right to an attorney and the same due process
       considerations that apply to all other identification procedures also applies to station
      house and courtroom identifications.

1.       If the suspect has been arraigned or indicted, he/she has a right to have counsel present at
      any in-person identification/confrontation.

2.     Live confrontations and informal viewings of the suspect by witnesses must be conducted
        in such a manner as to minimize any undue suggestiveness.

3.      Officers shall not state or suggest that the suspect has been arrested or booked or that
       he/she has made any confession or incriminating statement or that any incriminating
       evidence has been uncovered. The witness' identification, particularly if it takes place in
       a police station or courtroom, must be a result of his/her recollection of the appearance of
       the perpetrator and must not be unduly influenced by information or suggestions
        originating from the police.

IX.   DRAWINGS AND IDENTI-KIT COMPOSITES

     An artist's sketch, computerized drawing, composite, or other depiction can sometimes
aid an investigation, but are most effective when a witness has a good recollection of the
offender’s facial features. However, research has shown that a person selected based on
resemblance to composite is more likely to be mistakenly identified. Additionally, building a
composite has been shown to lower a witness’ accuracy for identifying the original face.

Prior to attempting a sketch or composite, officers should take from the witness and document a
full description of the offender.

1.   A sketch prepared by a trained artist is preferred over a composite.

2.     Sketches and composites should not be attempted prior to the showing of a photo array or
        line-up.

3.    Once the sketch or composite has been completed, the witness should be asked to state in
        his/her own words how accurately the composite reflects how the suspect appeared
       during the crime and a report should be prepared regarding the sketch or composite
       procedure.

4.    The fact that a suspect resembles a sketch or composite is not, without more, probable
       cause to believe that the suspect is the offender.

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XI.  MUG SHOTS

When an investigation has failed to identify a suspect, it may be advisable to have eyewitnesses
come to the police station to look through photographic files. However, officers should not
resort to this procedure until other investigative avenues have been exhausted.

1.    Remove or hide any information on the photographs that might in any way influence the
       witness;

2.     Ensure that the files contain only one photograph of each individual and that the
       photographs are reasonably current;

3.    Do not refer to the photographs as “mug shots”; 42.2.11 F

4.       If photographs of various formats are used, ensure that several of each format are used;

5.     Permit the witness to look at a number of photographs before making his/her selection;

6.    Do not call to the attention of the witness any particular photograph; 42.2.11 F

7.   A report shall be filed following the procedure, regardless of whether an identification is
      made. The report should describe the photographs viewed by the witness(es). 42.2.11 G

8.      Officers should be extremely cautious before charging a subject based on this type of
        identification alone.

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