NYPD Eyewitness Identification Procedures Guide, 1983
Download original document:
![Brief thumbnail](/media/cache/33/79/3379bdc88129d924f8f20bd462fdf585.jpg)
Document text
![Brief thumbnail](/media/cache/33/79/3379bdc88129d924f8f20bd462fdf585.jpg)
Document text
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
00001 239tld 9T£T8092T2 SS0d90Ntl id3Bnd ££:bT l002-0T-b0 NEW YORK CITY POLICE DEPARTMENT OFFICE OF THE DEPUTY COMMISSIONER· 1.EQAL MATTERS LEGAL BUREAU . PRESENTS '·" .. ,. ' .. . ::'' ., - . -·~ ' ., EYEWITN E~S~'tD~ENT.:l~1CATION PRo.c·eo:\J!Re,s ... ,, "• "': ' ' , .: ·:·· A "CONSTITUTIONAL LAW FILM SERIES" ,. ZOOll'! 00002 E391::1d 9TH8092f2 SS0d90l•ll::I ld3Bnd 9s:17i; .f-002-0.T.-\?Jil. ·• ·. • '.~joif~::~ti FORWARD This publication has been prepared by the Legal Bureau's Criminal Justice Section as supplementary material to the "Constitutional Law Film Series" on Eyewitness Identification Procedures, entitled "DESCRIPTION AS FOLLOWS". Copies of that training film can be secured by contacting the Police Academy or the Legal Bureau. The "Constitutional Law Film Series" is available in both 16 millimeter film as well as three-quarter inch video cassettes. Runrung time is 32 minutes. Questions concerning the legal points made herein should be referred to the Legal • Bureau at 374-S400 . October, 1983 • 00003 9T£T8092T2 SSOd~ON~ ld38nd 9S:vi L002-0T-b0 INTRODUCTION • THE NEED FOR EYEWITNESS IDENTIFICATION PROCEDURES A. EyewitMss ldontifk:at!on proced\ll"c& are used for those crimes where the Identity rJf th~ perpetr(Jtor is at i#ll.e. Many property crlmes, lar\lelly IJ1d burglary fOr example , do not involve eyewltnll$$es, and the identity of suspects is proved by other faciors, i.e., posselSion of stolen property, forensic evidence or confessions. , B. Crimes where the vli:tlm and perjlf:h'ator are related, or known to ucb other, usu..:tly do not require eyewitness identification procedures. C. Eyewitness identification proe«lurcs Involve lineups, use of photos, or in limited circumstances ,bowups, (Ont-On-one displays of suspect to victim). ii GENERAL RULE FOR EYEWlTNESS IDENTIFICATION PROCEDURES A. Criminal l!Ulpecb should be shown to victims alona with Otll~ similar appearin1 persons: I . If the iuspect is under arrest a lineup will bt con<1ueted. 2, If suspect is 1101 In ~1ody a photo array (photo lineup will be used). B. Showups - The one-on-one display of a suspect to a victim is PROHIBITED except: I. prompt on the scene. 2. hospital emergency. C. The iClleral rule is to give victims or eyewitn....ses a "a t:hoice" in viewing a criminal suspect. • iii WHY COURTS REQUIRE VICTIMS TO VIEW SUSPECTS IN LINEUPS OR UNDER CIRCUMSTANCES REQUIRING A CHOICE: A. Showups Rrt extremely niggative in nature, and can result in Misidentification. Lineups in'1olve a "Ch1;1ice" and are therefore less sugcstive than oltoWLlps. In requirina .. choice" the Courts were mindful of: !. Human Error a. Accuracy of the witness depen& ur>on his ability to: • observe • comprehend • remember • expre.u facts b. Obstacles to aCCUl'at:y ar~: • phy&lcal limitalions (failure to have atasses on; hearing: defects; intoic!catlon, etc.); • • • • pgychological llmitatlon1 (fear • focusing on the weapon and net the face; emotion, etc.); mental limitations (inability to judge colot, weight, height, distance, etc,); external conditioru (liahtlng, weatber, etc.); insufficient attention (time span, ca111bt by surprise, multiple perpettatots, etc.); c. Victims are cpen ID suggt.Stlvenr$S by P<ilic•: ·• • vlctimJ want to llOO))erate with police; • vietims want perpetrator cau&ht and puniahed; • dlspiay by police of suspea alone (showup) infer1! that police be/leve suspect is !lllilty party; £38tJd 00004 9T£18092T2 SS0~80NtJ 1~3an~ 9£:b1 L002-01-b0 • victims tend to believe p0lice know what they are doing, and if In a suggestive manner, an imlo· cent suspect is displa~ 10 perpetrator, the victim/witness may make a wrong identification merely because he reMlltlbla the real criminal; • word$ used by police ("this ls the fUl' that did It, Isn't it?); • place where the victim sees the su1pec1 (precinct house; cell); • manner In which $U$pcct is presented (handcuffed, ofru:ers surro11ndin1 him, bruised);. • bolstering the prospective Identification by the victim before he sees the $USpect by telling him that th< suspect was C&Uiht a short distance from the scene of the crime, or that the suspect had the victim's property on him when caught, QT that the suspect is a drug addict, etc. EYEWITNESS IDENTIFJCATIONS: THE PROCEDURES l SHOWUPS A. The one-on-one display of a suspect to a victim is generalt;i prohibi1ed u being unnecessarily suggestive, except: J. wh1rt1 it Is conducted promp1/y on-the-scene; or 2, where there L• in •n l!mergency hospital situation (witness crltlcally injured and likely to die). B. R~son& why a prompt on the $tene or hospital showup is allowed: Witness views suspect wllile recollection ls fresh, therefore, there is less llkellhood of mistaken identification. 2. If the suspect is NOT the perpetrator, he can be released wlth minimum delay. 3. If the suspect ls NOT the perpetrator, police can resume search without delay to \Qellte the real perpetrator. (NOTE) ALL SHOW UPS SHOULD BE MOTIVATED 8Y AND CONSISTENT WITH THE ABOVE PURPOSES. I. C. Showup Procedures - A police prompt on the scene $hOWUJl is orrieer should consider the follOWin& factors when determinins if a • )lermissib~: THE TIME ELAPSED SINCE CRI#E COMMITTED l. There Is no set time limit. However, If more than a few hours have elapsed since the commission of the crime, a showup should not be employed. Usually, the apprehension of a suspect and return to the scene for viewina will be within minutes, not hours, of tho crime. (NOTE) ··. I THIS WOULD NOT APPLY WHEfl.E THE VICTIM OR Wl1'N£SS IS ON HIS l DEATHBED AND A LINEUP IS IMPRACTICAL. 2. The Area • In order to take a suspect into custody for the purpose of bringing him b&ck to the scene of the crime for identification, the place of Apprehension ml.l5t oe witllin a distance to the crime scene that could have reasonallly been reached under the circumnances (i.e., could he have e;onen there In the time elapsed by foot, or using available bus or subway routl!'S?). 3. Detailtd description or othitr factor$ warromlng arrest and return to scene/or /denti(1COlion: a. Tran$J>Orting a suspect back to the scene of the crime is considered an arrest and must be baaed upan probable cause. b. Jt is therefore very impcrt11nt fr:.r officers at scene of a crime to secure and broadcast 11 deta/led description of th~ perpetral.Or{s). c. Where a, broadcast descri)ltion is not detailed, or no other basis for an arrest exisq, the victim 5hould be brought to J¢cation where suspect ls being detained, for a viewing. 4. Showups should not be conducted at 11 sta1ionhou;e. • ;,.;.:. ' .;· , •,,r '·« ~ ' 939t:ld 00005 9TET8092T2 SS0~90Nt:I 1~38n~ 9S:bT l002-0T-1>0. 5. Manner in whi<"h suspect is displayl!d: a. Never tell the wimess that the perpetrator bas been "caught", and tbat the witness must ,.jcw him for idenrifieation purposes . b. lf a witness becomes aware that a "suspect" Is in cu•tody, emphasize before the viewing that it Is only a suspect, and that the witness must not !Usume It ls the perpetrator before even v!ewinJ the su•p~ct. c. Allow the suspect to come into the witnesses view and to comment without prompting from the police. Do oot ask the witness. "Is this the man?" d. Request the witness to look carefully at the suspect and indieate whether or not he recoenlzes him, and if so. to de•cribe what the suspect did. • D. Group Identifications: I. Occasions will arise where a.n officer will ask a witness if he can pick 0111 the s11spect from a grO\lp of persons not ln police cu$tody. Examples' • Cruise aru around crime and observe suspect amont a aroup of individuals (unarranae<l confrontation). • Accompany a witneH to an area where suspect is likely to be with other persons, i.e., let witness watch persons coming and going from suspect's place of employment, at a park, playground, etc. Procedures: Allow witness to view area, with instructions to look carefully at people on street, in a. doorways or ln stores, etc. b. lf police officer sees a possible 1111.Spect, he may draw witnesses attendon in that dlrecllon. • c. Avoid pointing out a single individual, or if necessary, do so in a non-suggestive manner. Don't say "that looks like him doesn't it?" E. There is no right to counsel at any showup procedure. II PHOTO IDENTIFICATION PROCEDURES: A. The display of Sf.NOLE PHOTO of suspect to a witness is PROHIBITED. B. Mug File: L Used when police have no ide~ who suspect b. l. When 11sln11 mug files don't let witness know anythina about th~ bllek&round of~ person in photos. 3. Record source or photos, i.e., Mug file, CATCH and approximate number of photo,..,, viewed. C. Photo Arrays: I. Used where police have a &uspect in mind, but not in custody. (NOTE) DO NOT USE A PHOTO LINEUP PROCEDURE WHEN A SUSPECT IS UN~P. ARREST ARRESTED PERSONS MUST BE PLACED IN A LINEUP FOR lDENTIFICATlON PURPOSES. • 2. Use l photo of the suspect and S oth~r photos . 3. Q0012'1 Persons in photo& must be of similar appearance. a. If susp<:<:t has a physically unique characteristic, either cover the unique feature or add it other photo$. ,Uill!1;):3:S-JDNVll!I t•,fll 00006 L3!'ltld 9T£T8092T2 SSO~!'lONtl i~3811~ LS:vr L002-0T-v0 b. All photos must show suspecr.s of similar qe, race, sex, hair style, etc. 4. Photo themselves should be similar. $0 that photo of suspect does not stand out In any manner. a. Black/white •hould not be shown with color photos. b. Mug shots should not~ &hown with normal photo, unless 1111 photos can be covered with tape to conceal NYSID number, so that the mus photo does not stand out. S. For 111/ photo !D's, officer should keep a written record of procedure including: a. persons present durin& viewina; b. if poslt!ve ID was made; c. whether wltnell had difficulty in idenllfyina a suspect, I.e., pi.eked out ooe or more photo5 before picking out suspecr's photo; d. statements made by witness reprding photos during or after the viewing; e. amount of time !t tool< wltneso to ldentify suspect; f. use photo array folder to preserve array for Court use. D. Multiple witnesses rules /or phot() idMl/ficalior1 procedures. {Array or mug book): l. Witnesses mus1 be srparated and not permitted to view photos in a aroup. 2. Do not ditectly or Indirectly give any witness assistance in picking out photos. 3. Do not let witnesses discuts viewina among themselves. 4. Do nor tell witneu whether other witness did or did not identify suspect. E. There ls no right to counsel at a Photo Identification Procedure. Ill ., LINEUP PROCEDURE: A. Prior to the lineup; l. ihe suspect's righu: a. He must be advised or hls Miranda Warnings only it he is to be lnterroiated - whether before, during or after the "lineup". b. He must be advised that he is goina to be placed In a lineup so that his identity may be established concerning " particular crime or crimes. c. There is no rl11ht to counsel at a lln=up held prior to arraignment. d. If the su&pect requests a lawyer for the lineup he •hould be advised that he does not bave a right to a lawyer. e. Jf the suspect has a lawyer, and the law• ~ruests to be present at the lineup, allow him a reasonable time to appear. '\\X ·: f. If the attorney cannot, or docs not appear W\i~in a reasonable amount of time, tlle lineup can · '" proceed without him bein& present. 2. The Attornty: a. If an attorney is present at the lineup site he must be allowed to view the lineup. b. lf the attorney for the suspect ls present during the lineup, he shall be permitted to observe the manner in which the lineup conducted. He may view the lineup in the room in which it is conducted, or, if he prefers, in a place in· which he cannot be ob&erved. (NOTE: if necwary, a witnesses ID may be shielded by ure of a mask or face coverin&). is Inn~ • 00007 • e. The suspect's attorney shall no1 be pci~.~·iiiJk to any of the witnesses pa.rtl.Qipalins In the ide11tificatlon of the suspect. He shall ti.·~:llOwevet, to coa fer with his client. The attorney should not be permitted to mm the ~lntwvinr of the witness liter vicw!na the lineup. d. If the attorney makes suaacstiom to ~~~:the fa.imeu of the lineup, the o£ficcr conducting the lineup should follow them If he ~.:tile 1111gesllono reasonable and practical. e. The attorney should not b11 petmlttod to 'lmcrlcsre with the conduct of the lineup but should he advil<:d that all suggmlo11$ coocern!ng the lineup should be addressed to the officer conductintl the lineup. 3. The Police OJ,fbr Ct>nductln1 The LiMUP: a. The member of the service coDducllns the lnvesliaadon should be mponslble for the proper conduct of the lineup. Uc should persoaally make sure that everyone is adVised as required. b. He should see that the Identifying wiln- are intel'Vlewcd prior to the lineup. If there ls more than one witnm, they sbllllkl be llltel"Yfewed ~tcly. c. He shOuld make a complete record of: • The detail.! of the proccduro ullliz$d; • specific utterance1 requited ot any person in the lineup (e.1., speaking the words at the scene of the crime); • any actions of persons In lineup requlred to facilitate identification (e.g., tryina on a hat, stand up, turnina sideways); • all resp()Jlle$ or statements made by viewine witnesses; • names, addl'eues/ commands of all perso!lS present, Including but not limited to $USpe<:ts, victims, other wltlldtCS, police officers, assistant district attorneys, or defense counsel. • d. He must take every necessary precaution to make sure that no ~on who willJHUllcipal11 In tllll lineup Is seen prior to the lineup /Jy any of the vi11wing witMSSM, e.g., you - o t use police officers as fillm who have bid any contact with the witness. e. He should not tell the wltneM any facts eoncemlna the apprehension of the Sllfpect, such as p0$SeSSlon of the weapon or recoveted evidence. f. He should not show the victim a photo of the suspect Immediately before conducdng the lineup to refresh tht witness« memory. g. He $hould prepare a sheet of paper with a <:ircle representing each person in the lineup. Eacli circle must bear the number which represents the positions of the persons In the lineup. PersQll!I in the lineu11 occupying those positions will hold up, facing the viewers, a card bearing the number of the position he is occupyin&, (e.JI., positiOll number I, 2, 3, 4, 5, or\!), This Is to be usod by a witness to Indicate persons he reeognlus. After an Identification ls made. this. paper should be marked and retained. B. The Lineup ProMfure Whether a lineup is to take place at a police facility ot 1111y other place of custody, the following procedure should be utlliz.ed (except in emeraency situations aml orHhe-sccne •howups): I. The suspect should be viewed with at least five (5) other persons (fillon). No one can b« ust<d 11$ a fll/11r who may be known to tll'IY wilnts.s. • /.. AU persons in the lineup mU$t be of the same m~ and sex. 3. AU persons in the lineup should be about the same a11e, heijht and physical makeup, e.g., an obvious 16 ye«r old could t10t be shown with adults; a suspect Identified as havin& red \lair c:a.nnot be shown with black haired persons; a suspect identified as havlnf a scar on his face cannot be shown unless all perso11S in the lineup have acme similar markings or all peri!Orn! have a balldaie or something similar covori"l! the area. 4. All persons in the lineup should be similarly clothed, c.a., If the sllSpect ltu a suit on, everyone should wear one; police officers used u fillers must not be allowed to WW' any distillctlve part of a 00008 63CJtld ' t i police uniform (pants, etc.); If the suspect Is dressed 1111Usually or In a distinctive manner so as to stand out from the olhm, this dress should be covered in some manner. 5_ The suspect should be told to select his position in the lineup. Tf he refuses to select his own position, he should be placed In the lineup in a fair position. Each person should hold a card bearing the number of his position in lineup, e.g., 1,2,3.4.,,6. 6. Persons in the lineup may be in a seated position in order to equalize height variations. 7. All non-suspect participants must be advised that they should not In any manner indicate which one of the group is the suspect, e.a .• turnlna bis head towards the suspect. 8. There must be no interrogation of the suspect while the viewing witnesses are present. ' j' ' .1I f 9. No person in the lineup may be asked to say or do anythln& in connection with the crime unless all are asked to do tht same thing, e.g., say "This is a robbery" or "Put up your hands." 1O. Neither directly nor indirectly should the offlcers conducting the lineup, in any manner, indicate who the s11speet is, nor should they assist the witnesses in their attempts to iden.tify the suspect, .. .: · e.g., "Is this the guy?" or "How about the guy In the brown coat?" ~r;- 11. Where there are two (2) or more victims or witnesses. they MUST PERMITTED TO VIEW THE LINEUP AT THE SAME TIME, nor may they be ptj'n)l~speak to each other either before or during the lineups. ln addition, after one witness hits.vlewe1:t the lineup, he should be SEPARATED from other witnesses until all lineup ~l.U'efl1ave been completed. 12. No witnesses may be told that another witnl!l$S did or did not lllake an Identification of someone In the lineup. l I l l 13. If necessary, the witncs;eo may be masked while viewing the lineup. 14. If the lineup is not videotaped, a polarold photoaraph should be taken or the lineup as viewed by the Identifying witnesses. IS. If at any stage of this procedure difficulties arc encountered, the superior in charge should consult with the Legal Burea11 or the District Attorney. •1 • l I ! ' • A.L Ilffi:ms-H::>NYllt:I Ltt996LQtg XVd og:ct LOOi/OT/tO