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NEW YORK CITY POLICE DEPARTMENT
OFFICE OF THE DEPUTY COMMISSIONER· 1.EQAL MATTERS

LEGAL BUREAU
. PRESENTS

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EYEWITN E~S~'tD~ENT.:l~1CATION

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"CONSTITUTIONAL LAW FILM SERIES"

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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

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Bureau at 374-S400 .

October, 1983

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INTRODUCTION
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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.

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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.);

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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•:

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• 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;

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• 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
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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

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)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)

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THIS WOULD NOT APPLY WHEfl.E THE VICTIM OR Wl1'N£SS IS ON HIS

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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.

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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.

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D. Group Identifications:
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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.

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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.
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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.

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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$.

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b. All photos must show suspecr.s of similar qe, race, sex, hair style, etc.
4.

Photo themselves should be similar.

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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):
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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.

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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.
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f. If the attorney cannot, or docs not appear W\i~in a reasonable amount of time, tlle lineup can
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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&).

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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.

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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.

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/.. 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

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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.
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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.

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Persons in the lineup may be in a seated position in order to equalize height variations.

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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.

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There must be no interrogation of the suspect while the viewing witnesses are present.

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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,
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e.g., "Is this the guy?" or "How about the guy In the brown coat?"

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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.

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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.

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