The biggest concern for pretrial identification is to make sure that when a witness identifies a person at trial, they are identifying the person who committed the crime and not merely the person whom they had previously seen at a pretrial identification procedure. There are three basic identification procedures used by law enforcement officers:
- show-up – witness views just one person
- photo lineup – witness attempts to identify the perpetrator of a crime by viewing photographs of possible suspects
- live lineup – witness views a number of people together in person in an attempt to identify the offender.
The show up has long been considered the most suggestive form of identification procedure. It is most often used when the law enforcement officers make an arrest soon after the crime and need to decide whether to continue to hold the suspect. The photo lineup is normally used in a couple of different ways by law enforcement officers. A police officer may have a witness look through a book of arrest photographs (i.e., mug shots) or a police officer may arrange photographs similar to a lineup, trying to select photographs that resemble each other to avoid suggestiveness. A live lineup will involve law enforcement officers bringing together several individuals, usually five or six, sitting or standing next to each other and have the witness look at them, usually through a one-way mirror.
There are normally two separate issues associated with pretrial identification that can determine admissibility.
- Six Amendment right to an attorney at identification procedures
- Due process standard
The right to an attorney normally attaches or begins at the initial appearance after arrest. The initial appearance is normally conducted by a magistrate in North Carolina. However it is also possible that the issuance of an indictment or information may trigger the right to counsel if these occur first in a particular case. In other words, the idea is that if the attorney is present during an identification procedure, the attorney can observe any suggestive aspects of the procedure and bring them out on cross examination of the state’s witness. A defendant can attack an identification procedure as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. Please remember however that both parts of the test must be present in order for the court to find the identification procedure is inadmissible. The way courts normally skirt around these issues is that they may acknowledge that the pretrial identification was suggestive, but they go on to find that there is no substantial likelihood of misidentification because other factors associated with the identification support the witness.
Sometimes the weakness of a pretrial identification procedure can be brought out at trial by showing that law enforcement officers failed to follow identification procedures set by North Carolina law (double blind lineup, photos presented in sequence, instructions to the eyewitness, video recording, etc.) The jury can be instructed that it may consider credible evidence of compliance or noncompliance of the special North Carolina rules on pretrial identification to determine the reliability of an eyewitness identification. Please remember that under North Carolina law, the special identification rules do not apply to showups.
The remedy for unconstitutional identification is exclusion of the in court identification, unless it has an independent source. As stated previously, the courts do not like this extreme remedy and rarely exercise this option. Instead the courts will allow the jury to decide the credibility and accuracy of an eyewitness.