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Rule 617. Eyewitness Identification

 

(a) Definitions

 

(1) ?Eyewitness Identification? means witness testimony or conductin a criminal trial that identifies the defendant as the person who committed acharged crime.

 

(2) ?Identification Procedure? means a lineup, photo array, or showup.

 

(3) ?Lineup? means a live presentation of multiple individuals,before an eyewitness, for the purpose of identifying or eliminating a suspectin a crime.

 

(4) ?Photo Array? means the process of showing photographs to aneyewitness for the purpose of identifying or eliminating a suspect in a crime.

 

(5) ?Showup? means the presentation of a singleperson to an eyewitness in a time frame and settingthat is contemporaneous to the crime and is used to confirm or eliminate thatperson as the perceived perpetrator.

 

(b) Admissibility in General. In cases whereeyewitness identification is contested, the court shall exclude the evidence ifthe party challenging the evidence shows that a factfinder, considering thefactors in this subsection (b), could not reasonably rely on the eyewitnessidentification. In making this determination, the court may consider, amongother relevant factors, expert testimony and otherevidence on the following:

 

(1) Whether the witness had an adequate opportunity to observethe suspect committing the crime;

 

(2) Whether the witness?s level of attention to the suspectcommitting the crime was impaired because of a weapon or any other distraction;

 

(3) Whether the witness had the capacity to observe the suspectcommitting the crime, including the physical and mental acuity to make theobservation;

 

(4) Whether the witness was aware a crime was taking place andwhether that awareness affected the witness?s ability to perceive, remember,and relate it correctly;

 

(5) Whether a difference in race or ethnicity between thewitness and suspect affected the identification;

 

(6) Thelength of time that passed between the witness?s original observation and thetime the witness identified the suspect;

 

(7) Anyinstance in which the witness either identified or failed to identify thesuspect and whether this remained consistent thereafter;

 

(8) Whether the witness was exposed to opinions, photographs,or any other information or influence that may have affected the independenceof the witness in making the identification; and

 

(9) Whether any other aspect of the identification was shown toaffect reliability.

 

(c) Identification Procedures. If anidentification procedure was administered to the witness by law enforcement andthe procedure is contested, the court must determine whether the identificationprocedure was unnecessarily suggestive orconducive to mistaken identification. If so, the eyewitness identification mustbe excluded unless the court, considering the factors in subsection (b) and thissubsection (c), finds that there is not a substantial likelihood of misidentification.

 

(1) Photo Array or Lineup Procedures. To determine whether a photoarray or lineup is unnecessarily suggestive or conducive to mistakenidentification, the court should consider the following:

 

(A) Double Blind. Whether law enforcement used double blind procedures inorganizing a lineup or photo array for the witness making the identification.If law enforcement did not use double blind procedures, the court shouldconsider the degree to which the witness?s identification was the product ofanother?s verbal or physical cues.

 

(B)Instructions to Witness. Whether, at the beginning of the procedure, law enforcementprovided instructions to the witness that

 

(i) theperson who committed the crime may or may not be in the lineup or depicted inthe photos;

 

(ii) it is as important to clear aperson from suspicion as to identify a wrongdoer;

 

(iii) the person in the lineup ordepicted in a photo may not appear exactly as he or she did on the date of theincident because features such as weight and head and facial hair may change;and

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(iv) the investigation willcontinue regardless of whether an identification is made.

 

(C) Selecting Photos or Persons and Recording Procedures. Whetherlaw enforcement selected persons or photos as follows:

 

(i) Law enforcement composed thephoto array or lineup in a way to avoid making a suspect noticeably stand out,and it composed the photo array or lineup to include persons who match thewitness?s description of the perpetrator and who possess features andcharacteristics that are reasonably similar to each other, such as gender,race, skin color, facial hair, age, and distinctive physical features;

 

(ii) Law enforcement composed the photo array or lineup toinclude the suspected perpetrator and at least five photo fillers or fiveadditional persons;

 

(iii) Lawenforcement presented individuals in the lineup or displayed photos in thearray using the same or sufficiently similar process or formatting;

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(iv) Law enforcementused computer generated arrays where possible; and

 

(v) Lawenforcement recorded the lineup or photo array procedures.

 

(D)Documenting Witness Response.

 

(i)? Whether law enforcement timely asked thewitness how certain he or she was of any identification and documented allresponses, including initial responses; and

 

(ii)? Whether lawenforcement refrained from giving any feedback regarding the identification.

 

(E) Multiple Procedures or Witnesses.

 

(i)? Whether or notlaw enforcement involved the witness in multiple identification procedureswherein the witness viewed the same suspect more than once; and

 

(ii) Whether lawenforcement conducted separate identification procedures for each witness, and the suspect was placed in different positionsin each separate procedure.

 

(2) Showup Procedures. Todetermine whether a showup is unnecessarilysuggestive or conducive to mistaken identification, the court should considerthe following:

 

(A) Whether law enforcement documented the witness?sdescription prior to the showup.

 

(B) Whether law enforcement conducted the showupat a neutral location as opposed to law enforcement headquarters or any otherpublic safety building and whether the suspect was in a patrol car, handcuffed,or physically restrained by police officers.

 

(C) Whether law enforcement instructed the witness that theperson may or may not be the suspect.

 

(D) Whether, if the showup wasconducted with two or more witnesses, law enforcement took steps to ensure thatthe witnesses were not permitted to communicate with each other? regarding the identification of thesuspect.

 

(E) Whether the showup was reasonablynecessary to establish probable cause.

 

(F) Whether law enforcement presented the same suspect to thewitness more than once.

 

(G) Whether the suspect was required to wear clothing worn bythe perpetrator or to conform his or her appearance inany way to the perpetrator.

 

(H) Whether the suspect was required to speak any words utteredby the perpetrator or perform any actions done by the perpetrator.

 

(I) Whether law enforcement suggested,by any words or actions, that the suspect is the perpetrator.

 

(J) Whether the witness demonstrated confidence in theidentification immediately following the procedure and law enforcement recordedthe confidence statement.

 

(3) OtherRelevant Circumstances. In addition to the factors for the procedures described inparts (1) and (2) of this subsection (c), the court may evaluate anidentification procedure using any other circumstance that the court determinesis relevant.

 

(d) Admissibility of Photographs. Photographs used in an identification procedure may beadmitted in evidence if:

 

(1) the prosecution has demonstrated areasonable need for the use;

 

(2) the photographs are offered in aform that does not imply a prior criminal record; and

 

(3) the manner of their introductiondoes not call attention to their source.

 

(e) Expert Testimony. When the courtadmits eyewitness identification evidence, it may also receive relatedexpert testimony upon request.

 

(f) Jury Instruction. Whenthe court admits eyewitness identification evidence, the court may, and shallif requested, instruct the jury consistent with the factors in subsections (b)and (c) and other relevant considerations.

 

Effective November 1, 2019

 

2019 Advisory Committee Note:This rule ensures that when called upon, a trial court will perform a gatekeepingfunction and will exclude unreliable eyewitness identification evidence in acriminal case. Several organizations, including the Department of Justice andthe ABA, have published best practices for eyewitness identification procedureswhen a witness is asked to identify a perpetrator who is a stranger to thewitness.? Asscientific research advances, other factors in addition to those outlined inSubsection (b) may be considered.

 

Subsection (a) defines termscommonly used in the eyewitness identification process.

 

Subsection (b) addressesestimator variables (circumstances at the time of the crime). According to theNational Research Council of the National Academies, the most-studied estimatorvariables include: weapon focus, stress and fear, race bias, exposure,duration, and retention. The literature talks about how stress, fear, andanxiety may affect memory storage and retrieval. The ABA recognizes that highand low levels of stress may harm performance in identifying suspects, whilemoderate levels may enhance memory performance. A stressed victim may encodeinformation differently and be more affected by stress than a passerby, unless the passerby is unaware that a crime istaking place. In addition, the cross-race effect may impactthe accuracy of identifications; and the participation of law enforcement andothers may influence a witness?s perceptions and memory retrieval. Expertevidence may be necessary to elucidate these factors for the court, and wherethe evidence is admissible, expert evidence and/or an instruction may furtherelaborate on the factors for the jury.

 

Subsection(c)(1)reflects some of the best practices in the context of photo array and lineupprocedures, including use of double blind procedures; providing instructions tothe witness at the beginning of the procedure; displaying photos or presentinga lineup with individuals who generally fit the witness?s description of thesuspect and who are sufficiently similar so as not to suggest the suspect tothe witness; documenting the procedures, including the witness?s responses; andguarding against influencing the witness through use of multiple procedures orwhen multiple witnesses are involved.

 

Useof double blind procedures. The literature, including the National Academiesof Science report, supports that whenever practical, the person who conducts alineup or organizes a photo array and all those present (except defensecounsel) should be unaware of which person is the suspect through use of doubleblind procedures. Use of double blind procedures provides assurance that anadministrator who is not involved in the investigation does not know what thesuspect looks like and is therefore less likely to suggest or confirm that theperpetrator is in the lineup or the photo array. At times, double blindprocedures may not be practical. In such cases, the administrator should adoptblinded procedures, such as a ?folder shuffle,? to prevent him or her fromknowing which photo a witness is viewing at a given time and to ensure that heor she cannot see the order or arrangement of the photographs viewed by thewitness. Blinded procedures may be necessary to use in smaller agencies withlimited resources or in high profile cases where all officers are aware of thesuspect?s identity. As a practical matter, blinded procedures work only forphoto arrays and are not recommended for use in lineups. Lineups must beconducted using double blind procedures.

 

Providinginstructions to the witness. The person conducting the lineup or photo arrayshould not disclose or convey to the witness that a suspect is in custody.Rather, the person should read instructions to the witness that are neutral anddetached and should allow the witness to ask questions about the instructionsbefore the process begins. The witness should sign and date the instructions.Organizations have published instructions for use in lineup or photo arrayprocedures that may be used by agencies. While a witness is viewing the photoarray, the person conducting the procedure should not interrupt the witness orinterject.?

 

Displayingphotos or presenting a lineup. In selecting fillers or individualsfor the photo array or lineup procedure, at least five fillers?ornon-suspects?should be used with the suspect photo. Fillers should generallyfit the witness?s description of the perpetrator as opposed to match a specificsuspect?s appearance. Fillers should not make the suspect noticeably stand out.Photos should be of similar size with similar background and formatting. Theyshould be numbered sequentially or labeled in a manner that does not revealidentity or the source of the photo, and they should contain no other writing.

 

Documentingwitness responses.Law enforcement should clearly document by video or audio recording a witness?slevel of confidence verbatim at the time of an initial identification.

 

Multipleprocedures and multiple witnesses. According to the literature, multipleidentification procedures create a ?commitment effect? in which the witnessmight recognize a lineup member or photo from a previous procedure, rather thanfrom the crime scene. In addition, when multiple witnesses are involved, aprocedure that ensures the suspect is not in the same position for each procedureguards against witnesses influencing one another.

 

Subsection (c)(2) addresses showup procedures. While some jurisdictions consider showup procedures to be highly suggestive, the proceduresmay be necessary to law enforcement in assessing eyewitness identification. Inthat regard, the International Association of Chiefs of Police (IACP) and otherorganizations recommend that witnesses should not be shown suspects while theyare in suggestive settings such as a patrol car, handcuffs, or other physicalrestraints. Such settings can lead to a prejudicial inference by the witness.Subsection (c)(2) addresses factors to consider in showup procedures. Once law enforcement has probable causeto arrest a suspect, however, a witness should not be allowed to participate inshowup proceedings but should participate only inlineup or photo array procedures.

 

Subsection (c)(3)addressesother factors that may be relevant to the analysis. Those factors may includewhether there was no unreasonable delay between the events in question and theidentification procedures, among other things.

 

Subsection (d) addresses theuse of photographs at trial that were used by law enforcement in identificationprocedures.

 

Subsections (e) and (f) are includedbecause the National Academies of Science (NAS) report recommends both experttestimony and jury instructions due to the fact thatmany scientifically established aspects of eyewitness identification memory arecounterintuitive and jurors will need assistance in understanding the factorsthat may affect the accuracy of an identification.

 

Sources: NationalResearch Council, Identifying theCulprit: Assessing Eyewitness Identification (2014), available athttps://www.nap.edu/catalog/18891/identifying-the-culprit-assessing-eyewitness-identification;U.S. D.O.J., Eyewitness Identification:Procedures for Conducting Photo Arrays (2017); ABA Statement of BestPractices for Promoting the Accuracy of Eyewitness Identification Procedures(2004); IACP National Law Enforcement Policy Center, Eyewitness Identification: Model Policy (2010).