PRETRIAL IDENTIFICATIONS

1 May 2021

LU Ref# CAB00084

PRETRIAL IDENTIFICATIONS

May, 2021
DDA Robert C. Phillips (Ret.)

Introduction:

The “eyewitness identification” of a criminal suspect by victims and/or witnesses is almost always an integral and necessary part of any criminal prosecution. In the absence of a confession or physical or other evidence connecting a criminal suspect to a crime, victim and witness identifications often becomes a necessary prerequisite to a lawful arrest and an eventual guilty verdict.

Pretrial identifications of a criminal suspect by a victim or witness, absent a procedure used that is “impermissibly suggestive” (see below), are admissible in evidence at the trial of the matter as an exception to the hearsay rule. (E.C. § 1238; Prior Identification)

In those cases where, due to the lack of other evidence connecting a suspect to a crime, a victim and/or witness’s identification of the suspect as the perpetrator is a necessary prerequisite to charging and, eventually, convicting the defendant, the defense can be expected to make a motion to test the strength of the identification evidence by conducting a pretrial live lineup. Under the right circumstances, this is their right. The assigned prosecutor will be given the responsibility to ensure that a live lineup is scheduled and properly conducted.

Lineups in General:

“In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, [131] if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level [460] of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989; see also People v. Lucas (2014) 60 Cal.4th 153, 235; People v. Clark (2016) 63 Cal.4th 522, 556; People v. Garcia (2016) 244 Cal.App.4th 1349, 1358.)

It is the defendant’s burden to demonstrate the existence of an unreliable identification procedure. (People v. Lucas, supra; People v. Garcia, supra, at p. 1359.)

“The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” [Citation] ‘Moreover, there must be a “substantial likelihood of irreparable misidentification’ under the ‘“‘totality of the circumstances”’” to warrant reversal of a conviction on this ground.” (People v. Garcia, supra, quoting People v. Cunningham (2001) 25 Cal.4th 926, 989-990.)

Pen. Code § 859.7: Effective January 1, 2020, P.C. § 859.7 (SB 923, 2018 session) was passed, providing some statutory standards for the fair an unbiased administration of live and photographic lineups.

A statewide standard for eyewitness identiﬁcation practices requires all law enforcement agencies and prosecutorial entities to adopt by January 1, 2020, regulations for conducting photo lineups and live lineups with eyewitnesses and by specifying the minimum standards for those regulations. The statute provides that this new section does not affect policies for ﬁeld show up procedures.

Minimum Requirements: The following are the minimum requirements for eyewitness identiﬁcations:

1. Eyewitnesses must provide a description of the perpetrator as close in time to the incident as possible, and before any identiﬁcation (ID) procedure is conducted.

2. The investigator conducting the ID procedure must use “blind administration” or “blinded administration” during the ID procedure.

3. If blind administration is not used, the investigator must state in writing the reason it was not used.

4. Eyewitnesses must be instructed as follows before any ID procedure:

a. The perpetrator may or may not be among the persons shown.

b. The eyewitness should not feel compelled to make an ID.

c. An ID or the failure to make an ID will not end the investigation.

5. The ﬁller people or photos for an ID procedure must generally ﬁt the eyewitness description.

In the case of a photo lineup, the photo of the actual suspect should resemble his or her appearance at the time of the offense and “not unduly stand out.”

6. In a photo lineup, information about any previous arrest of the suspected person cannot be visible to the eyewitness.

7. Only one suspected perpetrator can be included in any ID procedure.

8. All eyewitnesses must be separated when viewing an ID procedure.

9. Nothing shall be said to an eyewitness that might inﬂuence an ID by the witness.

10. If the eyewitness makes an ID, all of the following are required:

a. The investigator must inquire about the witness’ level of conﬁdence in the accuracy of the ID and “record in writing, verbatim, what the eyewitness says.”

b. Information about the identiﬁed person cannot be given to the eyewitnesses before obtaining the witness’ statement about his or her conﬁdence level.

c. The officer is prohibited from validating or invalidating any ID made.

11. An electronic recording must be made (both audio and video) of an ID procedure, if feasible. If not feasible an audio-only recording may be made and the investigator must state in writing the reason that video recording was not feasible.

Definitions:

“Blind administration” means that the administrator of an eyewitness ID procedure does not know the identity of the suspect.

“Blinded administration” means that the administrator of the ID procedure may know who the suspect is, but does not know where the suspect in a live lineup or the suspect’s photo in a photo lineup, has been placed or positioned in the ID procedure through the use of:

a. An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the ID procedure is completed.

b. The folder shuffle method for conducting a photo lineup, whereby photos are placed in folders, then randomly numbered, then shuffled, then presented sequentially so that the administrator cannot see or track which photo is being presented to the eyewitness until after the procedure is completed; or

c. Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing where the suspect, or his or her photo, has been placed or positioned in a live lineup or in a photo lineup.

“Eyewitness” is defined as a person whose identiﬁcation of another person may be relevant in a criminal investigation.

Relevant Evidence: The new section specifically provides that nothing in this new section is “intended to preclude the admissibility of any relevant evidence or to affect the standards governing the admissibility of evidence under the United States Constitution.”

Note: Per CDAA, there is no authority in this section for a court to suppress an identiﬁcation based solely on the failure to follow these minimum regulations. And even if the statute contained a suppression mechanism, it would not be effective, because the bill did not receive a 2/3 vote in either the Assembly or the Senate. The Assembly vote was 50 for, 21 against, and 9 not voting. The Senate vote was 21 for, 8 against, and 11 not voting. A two-thirds vote in the Assembly requires 54 votes and a two-thirds vote in the Senate requires 27. California Constitution Article I, Section 28(f)(2) (“Right to “Truth-in-Evidence,” a part of 1982’s Proposition 8) provides that relevant evidence shall not be excluded in any criminal proceeding or in any trial or hearing of a juvenile for a criminal offense, except where two-thirds of the members of both houses of the Legislature enact a statute to provide for exclusion. In In re Lance W. (1985) 37 Cal.3d 873, the California Supreme Court interpreted this part of Prop. 8 and held that evidence cannot be excluded based on a violation of California law where it is admissible under federal law.

Live Lineups: A group of approximately (usually) six similarly appearing individuals, one of whom is the suspect, are displayed to eyewitnesses to see if the suspect can be identified.

When Appropriate: In an “ID” (i.e., an “‘ID’entification”) case, when there is witness’s eyewitness identification, the defendant, upon request, is entitled to a pretrial, live lineup. (Evans v. Superior Court (1974) 11 Cal.3rd 617.) The filing of such a request with the court is sometimes referred to as an “Evans Motion.”

The defense, however, is not entitled to have a live lineup merely because it is requested. “The right to a lineup arises . . . only when eye-witness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. . . . (¶) We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses.” (Id., at p. 625.)

It is error for the court not to balance the interests involved when considering a defendant’s motion for a live lineup (People v. Underwood (1983) 139 Cal.App.3rd 906, 914-915.), including the “burden to be imposed on . . . the police, the court and the witnesses.” (People v. Rivera (1981) 127 Cal.App.3rd 136, 148-149.)

“The possibility of a mistaken identification exists in any case; however, . . . (where) there is no ‘reasonable likelihood of mistaken identification,’” a pretrial lineup is not necessary. (Italics in original; People v. Abdel-Malak (1986) 186 Cal.App.3rd 359, 369.)

Where there is other independent evidence tending to connect the suspect with the offense, there is not likely to be an issue of mistaken identification. (People v. Yonko (1987) 196 Cal.App.3rd 1005, 1009.)

It was not an abuse of discretion for the trial judge to deny a defendant’s motion for a live lineup when made during the penalty phase of a murder prosecution and where there was no reasonable likelihood of mistaken identification, particularly after defense counsel conceded that the lineup “might not accomplish much.” (People v. Williams (1997) 16 Cal.4th 153, 235.)

A motion for a lineup was properly denied where there did not exist a reasonable likelihood of mistaken identification, and the motion was untimely. (People v. Redd (2010) 48 Cal.4th 691, 723-725.)

Timeliness: A live lineup must be held in a timely fashion. “Such a motion (for a live lineup) should normally be made as soon after arrest or arraignment as practicable.” (Evans v. Superior Court, supra, at pp. 625-626; see also People v. Baines (1981) 30 Cal.3rd 143, 147-149.)

“The broad discretion vested in a trial judge or magistrate includes the right and responsibility on fairness considerations to deny a motion for a lineup when that motion is not made timely.” (People v. Baines, supra.)

A trial court, however, has no jurisdiction to order a live lineup prior to the filing of criminal charges against the subject of the lineup. (Goodwin v. Superior Court (2001) 90 Cal.App.4th 215.)

Once charged, however, there is no requirement that the defendant be in custody. The San Diego County Jail has procedures set up to conduct live lineups even though the defendant is not in custody.

No right to refuse: The fact of a defendant’s refusal to participate in a live lineup, not having a constitutional right to such a refusal, may be used against him at trial. (People v. Johnson (1992) 3 Cal.4th 1183, 1221-1223.)

“(E)vidence of a defendant’s refusal to participate in a lineup may be used against him or her at trial.” (People v. Scully (May 24, 2021) __ Cal.5th __, __ [2021 Cal. LEXIS 3412]; quoting People v. Johnson, supra, at p. 1222.)

Also quoting People v. Watkins (2012) 55 Cal.4th 999, 1027, which held that “A defendant's refusal to participate in a lineup is admissible evidence supporting an inference of consciousness of guilt.”

A defendant does not have a right to refuse to stand in a live lineup. His refusal to do so may result in comment to the jury concerning his refusal to cooperate. (United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2nd 1149].)

A defendant's refusal, during a “show-up” at the police station, to don a jacket and cap allegedly worn by the robber was not protected by the self-incrimination privilege. (People v. Smith (1970) 13 Cal.App.3rd 897, 910.)

Evidence of a defendant’s refusal is admissible even if the police misled the suspect as to the consequences of refusing. A police officer telling defendant that he did in fact have a right to refuse goes merely to the weight as evidence of the defendant’s refusal, and not to its admissibility. (People v. Roach (1980) 108 Cal.App.3rd 891, 894.)

A defendant who refuses to participate in a live lineup prior to trial has no right to complain about the suggestiveness of a later in-court identification by an eyewitness. (People v. Harmon (1989) 215 Cal.App.3rd 552, 566-569.)
A defendant's refusal is no more or less probative because an inexperienced attorney, rather than the police, misled him as to the appropriateness of a refusal. (People v. Huston (1989) 210 Cal.App.3rd 192, 216-217.)

Right to Counsel:

Federal Rule: A defendant is entitled under the United States Constitution to counsel at a live lineup only if the lineup is conducted after he is formally charged (i.e., his indictment or arraignment) on the alleged offense(s). (Gilbert v. California (1976) 388 U.S. 263 [18 L.Ed.2nd 1178]; United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2nd 1149].)

Failing to provide an attorney at a post-indictment or arraignment live lineup is a Sixth Amendment issue, depriving a defendant of “that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” This is because the pre-trial, post-indictment live lineup is a “critical stage” of the criminal proceedings. Not providing defendant with the assistance of counsel during this stage deprives the defendant of the means by which he might have avoided a prejudicial lineup and effectively cross-examining witnesses on this issue during the later trial. (Id., at pp. 236-237 [18 L.Ed.2nd at p. 1162]; People v. Yokely (2010) 183 Cal.App.4th 1264, 1271-1272.)

Despite violating defendant’s right to counsel by not having an attorney at a post-charging lineup, witnesses may still be allowed to identify defendant at trial if the prosecution can prove, by clear and convincing evidence, that an in-court identification has a basis independent of the illegal lineup. (People v. Yokely, supra, at pp. 1275-1280.)

Substitute counsel at a live lineup after charges are filed is legally sufficient to protect the defendant’s Sixth Amendment rights. (People v. Lynch (2010) 50 Cal.4th 693, 709-711.)

California Rule: The California Constitution is interpreted differently, providing for a constitutional right to counsel even before the defendant has been formally charged. (People v. Bustamante (1981) 30 Cal.3rd 88, 102, citing the Calif. Consti. Art. I, § 15.)

However, a violation of this rule does not result in the suppression of any evidence in that the stricter state rule was abrogated by passage of Proposition 8 in June, 1982. (People v. Johnson (1992) 3 Cal.4th 1183, 1222-1223; People v. Cook (2007) 40 Cal.4th 1334, 1353-1354.)

Procedurally, prior to being formally arraigned, the San Diego Public Defender’s Office will provide an attorney to sit in on a lineup, when requested. The DDA responsible for overseeing the lineup should notify the Public Defender’s Office of a pending pre-arraignment lineup and the need for an attorney to be present.

When the Identification is Made: Defendant’s attorney has a right not only to be present at the lineup itself, but also at the “moment of identification,” i.e., after the physical lineup is conducted. (People v. Williams (1971) 3 Cal.3rd 853, 856; see also People v. Malich (1971) 15 Cal.App.3rd 253.)

This does not, however, give defense counsel the right to sit in on a post-lineup interview, even if it takes place immediately after the lineup is concluded and the witness’s identification, or failure to identify, is discussed. (People v. Perkins (1986) 184 Cal.App.3rd 583, 591; People v. Mitcham (1992) 1 Cal.4th 1027, 1066.)

Waiver: The right to counsel at a lineup may be waived, but only if the defendant is told that an attorney will be appointed for him if he cannot afford one. (People v. Banks (1970) 2 Cal.3rd 127, 134.)

A Miranda advisal and wavier obtained during interrogation is legally insufficient, by itself, to waive one’s right to counsel at a lineup. (Id., at p. 136.) However, providing a standard Miranda admonishment, including the arrestee’s right to a free attorney if he cannot afford one, in conjunction with an advisal of his right to waive counsel at a pending lineup, is sufficient. (People v. Evans (1971) 16 Cal.App.3rd 510, 516-517.)

The defendant, however, is not entitled to have the advice of counsel on the issue of the significance of executing the wavier. (People v. Wells (1971) 14 Cal.App.3rd 348, 354.)

Defense Attorneys’ Authority: A defense attorney at a live lineup is there merely as an observer. He or she is not entitled to dictate the procedures to be used or the persons (i.e., the “fillers”) to be included along with the defendant. (People v. Bustamonte (1981) 30 Cal.3rd 88, 99, fn. 7; Garcia v. Superior Court (1991) 1 Cal.App.4th 979, 987; People v. Wimberly (1992) 5 Cal.App.4th 773, 784-785; presence of appointed counsel, rather than defendant’s attorney of choice, satisfied defendant’s constitutional rights given the limited role of a defense attorney.)

Procedurally, however, it is good practice to allow the defense counsel to choose the fillers to be used in the live lineup from the group of inmates provided by the jail. Such a practice makes a later claim by the defense that the lineup was impermissibly suggestive hard to substantiate.

Fifth Amendment, Self-Incrimination: The courts have uniformly held that one’s Fifth Amendment self-incrimination privilege is not implicated by a live lineup procedure.

“(C)ompelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege.” (United States v. Wade (1967) 388 U.S. 218, 222 [18 L.Ed.2nd 1149, 1154]; referring to Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2nd 908] and Holt v. United States (1910) 218 U.S. 245 [54 L.Ed. 1021].)

In the lineup, the suspect may be made to move, talk and/or wear specific clothing without implicating the defendant’s constitutional rights. (Schmerber v. California, supra, at pp. 760-765 [16 L.Ed.2nd at pp. 913-916].)

The Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” (Schmerber v. California, supra, at p. 764 [16 L.Ed.2nd at p. 916].)

The Fifth Amendment also does not prevent a defendant from being required to:

Put on a stocking mask. (United States v. Roberts (5th Cir. 1973) 481 F.2nd 892.)
Wear a fake goatee. (United States v. Hammond (4th Cir. 1969) 419 F.2nd 166.)
Shave his beard. (People v. Carpenter (1997) 15 Cal.4th 312, 372.)
Shave his beard and mustache for an in-court identification. (United States v. Valenzuela (9th Cir. 1983) 722 F.2nd 1431, 1433; United States v. Lamb (10th Cir. 1978) 575 F.2nd 1310.)
To repeat words or phrases used by the perpetrator. (United States v. Leone (8th Cir. 1987) 823 F.2nd 246, 249-250.)
To wear a jacket and cap as worn by the robber. (People v. Smith (1970) 13 Cal.App.3rd 897, 910.)

The Prejudicial, “Impermissibly Suggestive,” Lineup Procedure:

A lineup that is “unnecessarily suggestive and conducive to irreparable mistaken identification” constitutes a “due process” violation. (People v. Caruso (1968) 68 Cal.2nd 183, 187; defendant being the only person in a live lineup who matched the physical description of the robber.

“(A)n identification procedure is considered suggestive if it ‘caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ (Citations)” (People v. Cook (2007) 40 Cal.4th 1334, 1354-1355; defendant shorter than the others, but “not significantly shorter;” no error.)

Placing defendant, a tall man, in a first lineup with two short men, and having the defendant wear a leather jacket worn by the robber, followed by a one-on-one confrontation between the defendant and the victim, and then having another lineup where the defendant was the only person who had appeared in the first lineup and where, for the first time, the victim finally made a positive identification of the defendant, violated the defendant’s due process rights. (Foster v. California (1969) 394 US. 440 [22 L.Ed.2nd 402]; “The pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable.”

Admission of the testimony of a fitness gym’s loss prevention manager that he recognized the man in a video from one of the gym’s clubs as defendant because he had seen defendant in 20-30 videos from other clubs was upheld. At some point, the manager had seen defendant’s driver’s license and booking photo and, therefore, knew the name of the person he was seeing in the videos. It did not matter at what point in the manager’s viewing of the videos—either before, during, or after—that he saw what were indisputably photos of defendant, and then could put a name to the images he saw in the video. Moreover, the jurors were able to test the manager’s opinion that defendant was the person in the 20-30 videos because they saw still photos taken from some of the videos, and the jurors could test the manager’s ability to correctly identify defendant in the three videos they were shown. (People v. Larkins (2011) 199 Cal.App.4th 1059, 1065-1068.)

In a first degree murder case under Pen. Code, § 189, a detective was properly permitted to describe the events of a surveillance video that was subsequently watched by the jury. The narration was admissible lay testimony under Evid. Code, § 800, based on the detective’s extensive review of the video, and it did not violate the secondary evidence rule because the video itself was admitted. (People v. Son (2020) 56 Cal.App.5th 689, 696-698.)

“In deciding whether an extrajudicial identification is so unreliable as to violate a defendant’s right to due process, the court must ascertain:

Whether the identification procedure was unduly suggestive and unnecessary, and if so,
Whether the identification was nevertheless reliable under the totality of the circumstances.” (People v. Gonzalez (2006) 38 Cal.4th 932, 942; quoting People v. Carpenter (1997) 15 Cal.4th 312, 366-367; People v. Johnson et al. (2010) 183 Cal.App.4th 253, 271-274; People v. Sanchez (2019) 7 Cal.5th 14, 35.)

See also People v. Chavez (2018) 22 Cal.App.5th 663, 674, adding factors to take into account in determining the presence of suggestiveness to include:

The opportunity of the witness to view the suspect at the time of the offense;
The witness’s degree of attention at the time of the offense;
The accuracy of his or her prior description of the suspect;
The level of certainly demonstrated at the time of the identification; and
The lapse of time between the offense and the identification.

If a defendant fails to show that the identification procedures were unduly suggestive, the court need not address the arguments regarding the identifications’ reliability under the totality of the circumstances. (People v. Johnson et al., supra, at p. 272.)

Lineups held to be fair include:

A five-man lineup where defendant was the only one whose undershirt was not visible at his throat and whose pants were light in color. (People v. Beivelman (1968) 70 Cal.2nd 60, 77; no “unfair focusing.”

Failing to match the clothing of everyone in the lineup does not make the resulting lineup prejudicial. (People v. Floyd (1970) 1 Cal.3rd 694.)

Where the participants were of comparable age and similar build, the fact that defendant was the only person wearing a gold shirt and sweater, but with each participant having his own distinctive clothing, and when the clothing worn by defendant was not part of the suspect description, the lineup was fair. (People v. Lawrence (1971) 4 Cal.3rd 273, 280.)

Advising the witness that the suspect was in the lineup did not suggest anything the witness would not already have assumed, and in no way suggested that defendant was the suspect rather than one of the other 9 members of the lineup. (People v. Meneley (1972) 29 Cal.App.3rd 41, 57.)

Defendant being the only one in a lineup wearing a blue shirt, which is what the robber wore, did not make the lineup unfair when the witnesses had an ample opportunity to observe defendant’s facial and other physical characteristics during the commission of the crime. (People v. McDaniels (1972) 25 Cal.App.3rd 708, 711.)

Lineup was fair despite the fact that defendant was the only person among the six who was wearing “gang-type” clothing, he ha a droopy eye, and his photo was discolored. (People v. Gonzalez (2006) 38 Cal.4th 932, 943; photographic lineup.)

Despite the differences, there was nothing that caused defendant to “stand out” from the others in a way that would suggest to the witness that he should select him. (Ibid.)

At a later live lineup, the fact that defendant was the only subject with a gang tattoo on the back of his head also was not impermissibly suggestive. (Id., at pp. 244-245.)

There is no prejudice in using “group” live lineups, as opposed to showing the individual one-by-one, sequentially. (People v. Johnson et al. (2010) 183 Cal.App.4th 253, 272.)

Single Person Identifications:

An identification of a defendant at trial, which is based on an unduly suggestive and unreliable pretrial identification that posed a very substantial likelihood of irreparable misidentification, violates a defendant's constitutional right to due process. (Neil v. Biggers (1972) 409 U.S. 188, 196–198 [34 L.Ed. 2nd 401, 93 S.Ct. 375].)

After having shown him other photographs of various individuals, and after the victim stated that none of the previous individuals was the person who stabbed him, and after the victim described the stabber, showing him defendant’s single photograph which he immediately identified, held to not be unduly suggestive under the circumstances. (People v. Chavez (2018) 22 Cal.App.5th 663, 674-677.)

“Showing the witnesses a single photo of the defendant is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom.” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008–1009.)

A single person photograph is analogous to a single person showup that “may pose a danger of suggestiveness, but such lineups or showups are not necessarily or inherently unfair.” (People v. Clark (1992) 3 Cal.4th 41, 136.)

A due process violation occurs only if an identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, the court considers (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (People v. Sanchez (2019) 7 Cal.5th 14, 35-36; single person photographic lineup upheld.)

The Ninth Circuit Court of Appeals held that the federal district court reasonably concluded that the use of a single photo of defendant from a social media site (i.e., Facebook) was not so suggestive that it rendered the witness’s identification unreliable because, inter alia, (1) the witness met with defendant on two occasions and voluntarily got into his car both times, (2) the witness identified defendant from the photo without hesitation, (3) the witness was certain of the identification at the time he made it in 2015, and (4) the witness explained to the jury that before he was shown the photo, he accurately described details concerning defendant's beard, hair color, body type, clothing, and vehicle. (United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 891-892.)

There is no requirement that the defendant be surrounded by nearly identical people. The fact that some of the lineup participants were taller than defendant did not make the lineup unfair. (People v. Sequeira (1981) 126 Cal.App.3rd 1, 16.)

A defendant’s own suggestive conduct in the lineup may not be the basis for a later allegation that he had been unfairly singled out. (People v. Boyd (1990) 222 Cal.App.3rd 541, 575; People v. Wimberly (1992) 5 Cal.App.4th 773, 790.)

However, even if a lineup (photo lineup in this case) is overly suggestive, if there are enough other factors indicating that the identification is sufficiently reliable, evidence of the identification may still be admissible. (United States v. Castro-Caicedo (1st Cir. 2014) 775 F.3rd 93; the court considering the length of the witness’ contact with the defendant (90 minutes), the fact that the witness played close attention to the defendant’s features, that his earlier description of the defendant closely matched how defendant actually appeared, and that the witness showed no hesitation in identifying defendant.)

Reverse Lineups: While not absolutely condemned, the use of a “reverse lineup” has been questioned by the U.S. Supreme Court. The issue is one of whether such a procedure constitutes the “functional equivalent of an interrogation.”

“The concern of the Court in Miranda was that the “‘interrogation environment’” created by the interplay of interrogation and custody would “‘subjugate the individual to the will of his examiner’” and thereby undermine the privilege against compulsory self-incrimination. (Miranda v. Arizona, supra,) at 457-458. The police practices that evoked this concern included several that did not involve express questioning. For example, one of the practices discussed in Miranda was the use of lineups in which a coached witness would pick the defendant as the perpetrator. This was designed to establish that the defendant was in fact guilty as a predicate for further interrogation. Id., at 453. A variation on this theme discussed in Miranda was the so-called “‘reverse line-up” in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of which he was suspected in order to escape the false prosecution. Ibid.” (Rhode Island v. Innis (1980) 446 U.S. 291, 299 [64 L.Ed.2nd 297].)

Court Procedures:

Evidence Code § 1238 (Prior Identification): “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:

The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and
The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at the time.”

(See People v. Redd (2010) 48 Cal.4th 691, 728-731.)

Defendant may challenge an allegedly tainted lineup by way of a pretrial motion to suppress or a timely objection when the identification evidence is sought to be admitted. (People v. Martin (1970) 2 Cal.3rd 822, 832, fn. 11.)

It is the defendant’s burden to demonstrate the existence of an unreliable identification procedure. (People v. Gonzalez (2006) 38 Cal.4th 932, 942; citing People v. Cunningham (2001) 25 Cal.4th 926, 989.)

The trial court is not constitutionally required to hold a hearing outside the presence of the jury (Watkins v. Sowders (1981) 449 U.S. 341 [66 L.Ed.2nd 549].), although such a procedure may often be advisable.

Evidence of a “prior identification” is admissible as substantive evidence of the identity of the perpetrator, pursuant to Evid. Code § 1238 (“Prior Identificaion”), even when the witness cannot later make the same identification in court. (People v. Gould (1960) 54 Cal.2nd 621.)

“ (E)vidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind.” (Id., at p. 626.)

“The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principle danger of admitting hearsay evidence is not present since the witness is available to the trial for cross-examination.” (Ibid.)

However, when an extrajudicial identification cannot be repeated at trial, there must be other evidence which tends to connect the defendant with the crime in order to sustain a conviction. (Id., at p. 631.)

However, even if a lineup is held to be impermissibly suggestive, the witness will be allowed to identify the suspect in court if the prosecutor proves by “clear and convincing evidence” that the in-court identification was nevertheless reliable under the totality of the circumstances. (See People v. Bisogni (1971) 4 Cal.3rd 582, 587; an unduly suggestive one-person lineup.)

Voice Identification Lineups: It is possible to set up a “voice identification” procedure, allowing victims and/or witnesses the opportunity to possibly identify a suspect by the sound or tone of his or her voice. (See People v. Vallez (1978) 80 Cal.App.3rd 46.)

If the circumstances warrant it, a trial court has the discretion to order a voice- only lineup. (Garcia v. Superior Court (1991) 1 Cal.App.4th 979.)

Such lineups are held to the same standards of avoiding “undue suggestiveness.” (People v. Vallez, supra, at p. 54.)

“(T)he crucial issue is whether appellant has been singled out and his identification made a foregone conclusion under the circumstances [citation].” (Id., at p. 55; citing People v. Faulkner (1972) 28 Cal.App.3rd 384, 391.)

“Several factors can contribute to suggestiveness in a voice lineup so as to undermine its reliability as an identification procedure. A person can modify the sound of his or her voice as to tone, pitch, volume or speed. Accents can be especially difficult for a person to imitate. The use of a machine—in both the creation and playback of the tape—adds technical variables to the process which must also be controlled.” (People v Vallez, supra, at p. 55.)

In Vallez, an officer used five other individuals to repeat the same eight short sentences after having listened to a recording on which the defendant said the same sentences. Each attempted to imitate defendant, including his Spanish accent. The Court found this procedure to be proper. (Ibid.)

Voice identification testimony is not an issue of Fifth Amendment self-incrimination, and is not precluded by this privilege. Thus, a defendant’s refusal to participate in a voice identification lineup may be used against him at trial. (People v. Ellis (1966) 65 Ca.2nd 529, 533-537.)

The privilege against self-incrimination extends to compelled testimonial or communicative disclosures by an accused only; not to “real” or “physical” evidence derived from him. The sound of a defendant’s voice is not classified as “testimonial or communicative.” (Schmerber v. California (1966) 384 U.S. 757, 760-765 [16 L.Ed.2nd 908, 913-916].)

The trial court did not err in admitting the testimony of defendant’s probation officer that he recognized defendant’s voice. The familiarity of defendant’s probation officer with defendant’s voice, even though most of the conversation took place using the Spanish language, was substantially more than the minimal familiarity Fed. Rules of Evid., Rule 901(b)(5) requires for admission of lay voice identification. The circumstances of the identification goes to the weight rather than the admissibility of the testimony. (United States v. Ortiz (9th Cir. 2015) 776 F.3rd 1042.)

However, a physical lineup where the defendant is the only one asked to speak is impermissibly suggestive. (People v. Avina (1968) 264 Cal.App.2nd 143, 147-148.)

Expert Testimony:

“When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (People v. McDonald (1984) 37 Cal.3rd 351, 377.)

Under the rule of McDonald, a properly qualified expert will be allowed to testify to the results of prior studies not widely known or not fully appreciated by lay persons, noting the “vagaries of eyewitness identification” as well as (where relevant) the pitfalls of cross-racial identification. Such testimony is not being admitted for purposes of impeaching the trial credibility of any particular witness, or to usurp the function of the jury, but rather to explain various factors at play in an “ID case” that are relevant to the weight to be given to an eyewitness’ identification of the defendant as the perpetrator.

Such evidence, however, may be excluded, in the trial court’s discretion, in cases where the prosecution’s case is not based solely on eyewitness identification. (People v. Plasencia (1985) 168 Cal.App.3rd 546; People v. Sanders (1995) 11 Cal.4th 475, 508-509.)

The trial court’s exclusion of a clinical psychologist’s proposed testimony that two live lineups were unfair because (1) some of the fillers in the first lineup were not viable alternative choices and (2) the videotape of the second lineup, which had been seen by some of the victims, showed Sandoval in the background for an inordinate amount of time, was upheld. In affirming defendant’s conviction, the Appellate Court ruled that the identity of the defendant as the perpetrator was fully corroborated by other evidence and that the “similarity in appearance of members of a lineup, relevant to the weight to be accorded an identification, is completely within the task of the trier of fact to resolve.” (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1298.)

See also People v. Jones (2003) 30 Cal.4th 1084: Expert testimony properly rejected where a witness’ eyewitness identification of the defendant was corroborated by the testimony of five other witnesses.

Where the corroborative effect of other evidence was sufficient to give independent reliability to the victim’s identification of defendant in a photo lineup and later in court, no expert testimony on the subject of eyewitness identification was required. (People v. Lucas (2014) 60 Cal.4th 153, 247-276-277.)

But see People v. Walker (1986) 185 Cal.App.3rd 155; defendant’s admission to having committed similar crimes is insufficient corroboration to avoid the rule of McDonald.

In a first degree murder case under Pen. Code, § 189, a detective was properly permitted to describe the events of a surveillance video that was subsequently watched by the jury. The narration was admissible lay testimony under Evid. Code, § 800, based on the detective’s extensive review of the video, and it did not violate the secondary evidence rule because the video was admitted. (People v. Son (2020) 56 Cal.App.5th 689, 696-698.)

In People v. Brandon (1995) 32 Cal.App.4th 1033, at pp. 1350-1352, a case involving a photographic lineup which defendant challenged as being impermissibly suggestive, the trial court properly allowed a defense expert to testify to the general factors that might have affected the accuracy of the victim’s eyewitness identification, but properly excluded proposed evidence of an experiment the expert conducted with the photographic lineup, showing it to others after giving them a verbal description of the perpetrator, to see how they might react. The experiment, per the court, did not sufficiently duplicate the victim’s actual experience, and was therefore irrelevant.

Sanctions for an Unfair Lineup Procedure:

If a lineup is conducted in some manner which creates a substantial likelihood of a misidentification, the affected witness may not be allowed to identify the defendant in court. (Foster v. California (1969) 394 US. 440 [22 L.Ed.2nd 402].)

To overcome the taint of a prejudicial lineup, the prosecution must establish by “clear and convincing evidence” that the in-court identifications were based on observations at the scene of the crime and not from the prior, unnecessarily suggestive lineup. (People v. Caruso (1968) 68 Cal.2nd 183, 190.)

If the prosecution can establish by “clear and convincing evidence” that the in-court identification is based upon some observation of the suspect other than that made at the prejudicial lineup (i.e., an “independent source”), then the witness will be allowed to identify the defendant at trial. (United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2nd 1149]; People v. Caruso (1968) 68 Cal.2nd 183; People v. Contreras (1993) 17 Cal.App.4th 813; People v. Ratliff (1986) 41 Cal.3rd 675, 689.)

Note: It is also helpful to simply ask the eyewitness on the stand: “Are you identifying the defendant today based upon what you saw in the lineup, or are you remembering him from the offense itself?”

Failure of a witness to appear for a live lineup is not grounds for exclusion of their proposed testimony identifying the defendant in the courtroom, at least in the absence of bad faith (two witnesses who failed to appear being in the final term of their respective pregnancies), but may be enough to require the court to issue a cautionary instruction. (People v. Fernandez (1990) 219 Cal.App.3rd 1379, 1385-1386; an instruction regarding the failure of the two witnesses to attend the lineup and the need for the jury to view their identification testimony with caution was held to be an adequate remedy protecting the defendant’s due process rights.)

Related Pretrial Lineups:

Inadvertent or Accidental Identifications:

Example: A defendant, while out of custody, arrives at the courthouse prior to a court hearing. His victims are in the courthouse hallway. One or more of the victims inadvertently sees the defendant walking down the hallway and exclaims: “There’s the man who robbed me!” Admissible?

Yes (or, at least, probably): What could be more fair, and more accurate, than an inadvertent eyewitness identification of a suspect made from all the people in the world who might just happen to walk by?

“Where there has been a chance police station identification, the issue is not whether a confrontation occurred but whether the circumstances of the confrontation were unduly suggestive.” (People v. Johnson (1989) 210 Cal.App.3rd 316, 322; citing People v. Hunt (1977) 19 Cal.3rd 888, 893.)

However, observing defendant prior to trial in the courthouse hallway in shackles, where the witnesses discuss the fact that that “must be him,” is prejudicial when some of the witnesses either could not previously identify him, or had trouble identifying him. The lack of the government’s involvement in the accidental viewing of the defendant is irrelevant. The issue is whether, as a result of this incident, there was a “substantial risk of misidentification” in the later testimony presented to the jury. (United States v. Emanuele (3rd Cir. 1995) 51 F.3rd 1123.)

The reliability of a suggestion pre-trial inadvertent identification of a suspect is a jury issue with outright suppression of the evidence before trial as a due process violation being appropriate only when there is some law enforcement involvement in the setting up of the circumstances. (Perry v. New Hampshire (2012) 565 U.S. 228 [132 S.Ct. 716; 181 L.Ed.2nd 694].)

Lay Opinion Identification:

A lay witness may offer opinion testimony if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony. (E.C. § 800)

“[T]he identity of a person is a proper subject of non-expert opinion . . . .” (People v. Perry (1976) 60 Cal.App.3rd 608, 612; People v. Mixon (1982) 129 Cal.App.3rd 118, 127.)

In Perry, it was held to be proper for officers to predicate their opinion on “contacts with defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events.” (Id., at p. 613.)

In Mixon, the identification of the defendant in a robbery surveillance photograph by officers who had numerous contacts with him and were unequivocal in their identification was held to be properly introduced into evidence. (Id., at pp. 130-131.)

Also:

Admission of testimony by robbery victim identifying defendant from a surveillance video, based on her observation of defendant during the crime, was upheld. (People v. Ingle (1986) 178 Cal.App.3rd 505, 515.)

A detective’s testimony, identifying defendant and the jacket he wore from a surveillance video of a robbery, was held to be admissible based upon the detective’s familiarity with defendant from having seen him when he was arrested and some ten subsequent contacts with him. The fact that the detective’s familiarity with defendant’s appearance came from contacts after the alleged crimes was held to be irrelevant. (People v. Leon (2015) 61 Cal.4th 569, 600-601.)

The detective was also allowed to testify that the suspect vehicle depicted in a video from another robbery/homicide “looked like” the car defendant was driving and crashed when he later fled from the police, noting that “(t)he body color, wood paneling, luggage rack, and appearance of the front license plate were all similar.” (Id., at p. 600; also testifying to the similarity between the clothing worn by the suspect in the video and that which was found in defendant’s vehicle when he later crashed it.)

Questions about the extent of the witness’s familiarity with a defendant’s appearance goes to the weight, not the admissibility, of the testimony. (People v. Perry, supra, at p. 613; People v. Leon, supra, at p. 601.)

In a first degree murder case under Pen. Code, § 189, a detective was properly permitted to describe the events of a surveillance video that was subsequently watched by the jury. The narration was admissible lay testimony under Evid. Code, § 800, based on the detective’s extensive review of the video, and it did not violate the secondary evidence rule because the video was admitted. (People v. Son (2020) 56 Cal.App.5th , __ [2020 Cal.App. LEXIS 969].)

Curbstone Lineups: “Single person” lineups, occurring shortly after the incident, are lawful and, despite the obviously suggestiveness of the procedure, are probably the most reliable. (See People v. Odom (1980) 108 Cal.App.3rd 100, 110 see also People v. Bauer (1969) 1 Cal.3rd 368, 374; and Stovall v. Denno (1967) 388 U.S. 293, 302 [18 L.Ed.2nd 1199, 1206]; United States v. Heard (8th Cir. 2020) 951 F.3rd 920.)

A “timely in-the-field identification is a procedure which enhances the reliability of the identification.” (People v. Colgain (1969) 276 Cal.App.2nd 118, 126.)

Identification of a defendant at trial, after the witness’ failure to identify him in a prior curbstone lineup, goes only to weight, not admissibility, of the in-court identification. (See People v. Prado (1982) 130 Cal.App.3rd 669.)

“‘[A]lthough a one-person showup may pose a danger of suggestiveness, such showups “are not necessarily or inherently unfair. [Citations.] Rather, all the circumstances must be considered.” [Citation.]’ (People v. Medina (1995) 11 Cal.4th 694, 753 . . . .) For an identification procedure to violate a defendant’s due process rights, ‘the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.’ (People v. Ochoa (1998) 19 Cal.4th 353, 413 . . . .) However, ‘single-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness's mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. [Citation.] The law permits the use of in-field identifications arising from single-person show-ups so long as the procedures used are not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.’ (In re Carlos M. (1990) 220 Cal.App.3rd 372, 387 . . . , italics omitted; see In re Richard W. (1979) 91 Cal.App.3rd 960, 970 . . . ; People v. Irvin (1968) 264 Cal.App.2nd 747, 759 . . . .)” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1359.)

In Garcia (pg. 1360, fn. 3) the Escondido Police Department used a pre-printed form to admonish a victim/witness prior to being shown three detained robbers, which read as follows:

“I want you to look at someone we have detained. Don't conclude from the fact that we have detained someone that he or she is the guilty party.

“You are not obligated to identify anyone. It is just as important to free an innocent person as it is to identify the involved party.

“Be aware that sometimes people who commit crimes will try to disguise their appearance by changing clothes, wearing hats, sunglasses or wigs.

“Don't say anything or make any gestures by nodding or pointing, et cetera, until you have totally viewed the person. Do you understand?”

Burden of Proof: The defendant bears the burden of proving the unfairness of a pre-trial identification as a “demonstrable reality,” and not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222; see also People v. Garcia, supra, at p. 1359.)

Factors: A number of factors, if present, are considered in determining whether such identifications are reliable. (See Neil v. Biggers (1972) 409 U.S. 188, 199-200.):

The witness’s opportunity to view the criminal at the time of the crime.
The witness’ degree of attention.
The accuracy of the witness’s prior description of the criminal.
The level of certainty demonstrated by the witness when making the identification.
The length of time between the crime and the confrontation.

Right to an Attorney: There is no right to the assistance of counsel at a curbstone lineup, in that the suspect has yet to be formally charged. (Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2nd 411]; People v. Dampier (1984) 159 Cal.App.3rd 709; People v. Colgain, supra, at p. 125.)

Suggestiveness: The “suggestiveness” inherent in a “one-on-one” lineup is more than offset by the fact that the suspect’s appearance is still fresh in the victim or witness’s mind:

Defendant being detained in handcuffs was not prejudicially suggestive. (People v. Anthony (1970) 7 Cal.App.3rd 751.)

Being in the back seat of a police car will not invalidate an identification in a curbstone lineup. (People v. Rodriguez (1970) 10 Cal.App.3rd 18; People v. Smith (1970) 13 Cal.App.3rd 897.)

Having the darkest skin tone of the six depicted persons in the photo array found not to make it impermissibly suggestive. (People v. Shabazz (2004) 118 Cal.App.4th 1458; Review Granted by the Supreme Court 9/15/04)

“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1358; “The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him. . . . (T)here must be a ‘substantial likelihood of irreparable misidentification’ under the ‘totality of the circumstances’ to warrant reversal of a conviction on this ground.” (Id., at p. 1359.)

Law enforcement officers are not limited to station house line-ups if there is an opportunity for a quick, on-the-scene identification. Officers should avoid any identification procedure that is inherently suggestive. An inherently suggestive identification procedure is one that gives rise to a substantial likelihood of misidentification. However, even if an identification procedure is deemed to have been inherently suggestive, it will be admissible as long as it is not also deemed to be “unreliable.” (United States v. Heard (8th Cir. 2020) 951 F.3rd 920.)

Timeliness: There is no specific authority for limiting the time between the crime and the one-person lineup. However, this is an important factor that cannot be overlooked in considering the totality of the circumstances.

“Although the length of time between the occurrence of a crime and the confrontation between the suspect and the victim is important in determining whether the identification procedure was fair, it is only one of the many factors which the court must weigh and analyze in making that determination. (People v. Nash (1982) 129 Cal.App.3rd 513, 516-519; a 20-hour delay; curbstone lineup upheld.)

Identification of one of the suspects (a female) from a robbery that had occurred 5½ months earlier, where the suspect identified was alone in a room, occurred shortly after the other two suspects had been identified in a lineup, and where the witnesses knew that the third person was a female, was unduly suggestive. (People v. Bisogni (1971) 4 Cal.3rd 582, 586-587.)

Procedure:

A suspect need only be lawfully “detained” in order to require that he or she submit to a curbstone lineup. (See People v. Rodriguez (1988) 196 Cal.App.3rd 1041, 1047-1048.)

Of course, a suspect for whom there is insufficient cause to hold him, even temporarily, if he agrees to remain at the scene voluntarily, may be shown to victims or witnesses in a curbstone lineup.

The victim/witness should be transported to the detainee. Transporting the detainee to the victim will likely constitute an “arrest,” and is illegal absent probable cause to believe the suspect is guilty. (Dunaway v. New York (1979) 442 U.S. 200, 206-216 [60 L.Ed.2nd 824, 832-838]; Taylor v. Alabama (1982) 457 U.S. 687 [73 L.Ed.2nd 314]; People v. Harris (1975) 15 Cal.3rd 384, 390-392; In re Dung T. (1984) 160 Cal.App.3rd 697, 712.)

However, there are exceptions:

Victim/witness is ill or injured, and cannot safely be taken to the detainee. (People v. Harris, supra, at p. 391; In re Lynette G. (1976) 54 Cal.App.3rd 1087, 1093.)

When necessary for safety reasons, such as when surrouded by a hostile crowd. (See People v. Courtney (1970) 11 Cal.App.3rd 1185, 1191-1192.)

Where it would be less intrusive on the suspect’s rights to convey the suspect speedily a few blocks away to the crime scene rather than unduly prolong the field detention. (People v. Harris, supra.)

The detainee’s consent, if freely and voluntarily obtained, would allow for officers to transport him to the victim.

Note: There is no set list of instructions for an officer to give to the victim/witness prior to a curbstone lineup. However, it helps to offset the suggestiveness of such a procedure if the officer tells him or her, prior to the lineup, sometime like:

“We have a person detained who may or may not be involved in (the crime) and that we’d like you to view. The fact he is detained (and in handcuffs, in a patrol car, etc.) does not mean that he is the person who (robbed you, stole your property, assaulted you, etc.). The fact that he is detained should be completely disregarded by you. What is important is for you to tell us whether or not you recognize him, and if so, from where. If you do not recognize him, it is extremely important that you tell us that so we may continue our search for the person who did (rob you, etc.). If you do recognize him, I will be asking you how sure you are (e.g., 100%, 50%, etc.) and what it is about him that you recognize (e.g., his facial features, his hair, his clothing, his height and/or weight, or any other distinctive features, etc.). Any questions?”

Photographic Lineups: The use of a photographic lineup to identify the perpetrator of a criminal act has long been recognized as proper. (Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2nd 1247, 1253]; People v. Lawrence (1971) 4 Cal.3rd 273, 277-278.)

Procedure: A series of five to six (generally) photographs of similarly appearing individuals, one of whom is the suspect, are shown to eyewitnesses to see if the suspect can be identified.

There is no legal requirement that officers adhere to the traditional 6 photograph “six pack” photo array. See People v. Phan (1993) 14 Cal.App.4th 1453, 1461-1462, where showing a robbery victim five group “social” photos, depicting a total of 20 people, was held to result in a valid, non-suggestive identification of the defendant.

Showing witnesses a book of “mug shots,” or multiple (i.e., hundreds) of photographs from a file of criminals, is not improper. (People v. Neal (1969) 271 Cal.App.2nd 826; see also People v. Pijal (1973) 33 Cal.App.3rd 682, 690; and People v. Contreras (1983) 144 Cal.App.3rd 749, 758.)

The California Commission on the Fair Administration of Justice (CCFAJ) has proposed new, presumably more reliable procedures, as follows:

Sometimes referred to the “the double blind technique:”

The officer who shows the photo spread or conducting the line does not know who the suspect is, or, if the suspect is even included.

The witnesses or victims view the photo spread or line-up sequentially, not simultaneously; i.e., the witnesses or victims view the suspect one at a time instead of the traditional "6 Pack."

At least one court has indicated its belief that showing the photos one-by-one, instead of all simultaneously, is less suggestive. (See United States v. Ford (7th Cir. 2012) 683 F.3rd 761; “Witnesses shown a sequential lineup are more likely to compare each person in it only with their memory of the offender, rather than choose whichever person looks the most like what the witness remembers [Citations omitted].”)

The CCFAJ cites a recent study that highlights the frequency of misidentification of eyewitnesses resulting in the incarceration of innocent suspects who are later exonerated by DNA.

An appellate court’s determination of the legality of a photographic lineup involves a three-part inquiry:

The court must determine if the pretrial identification procedure was impermissibly suggestive.
If the identification procedure was unduly suggestive, the court must determine whether it was sufficiently reliable such that it does not implicate [13] the defendant's due process rights.
Even if the pretrial identification procedure was suggestive and the identification was unreliable, the court must examine the district court's failure to exclude the identification for harmless error.

(United States v. Carr (9th Cir. 2014) 761 F.3rd 1068, 1073-1074; United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 891.)

Suggestiveness: As with live lineups, such lineups are lawful, as long as the procedure used is not “so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” (Simmons v. United States, supra; People v. Johnson (1992) 3 Cal.4th 1183; People v. Clark (2016) 63 Cal.4th 522, 556; United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 891; People v. Wilson (2021) 11 Cal.5th 259, 283.)

A violation of a defendant’s due process rights “occurs ‘only if the identification procedure is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”’ (People v. Sanchez (2019) 7 Cal.5th 14, 35 . . . .) If we determine the procedure was suggestive, no due process violation arises if ‘the identification itself was nevertheless reliable under the totality of the circumstances.’ (People v. Clark (2016) 63 Cal.4th 522, 556 . . . . quoting People v. Kennedy (2005) 36 Cal.4th 595, 608 . . . .) In assessing the totality of the circumstances, we consider ‘such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.’ [Citations.] ‘Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ [Citation.]’ (Sanchez, at pp. 35–36.)” (People v. Wilson, supra.)

“A defendant’s claim that an identification procedure was unduly suggestive is a ‘mixed question of law and fact.’ (Clark, supra, 63 Cal.4th at p. 557; see also Kennedy, supra, 36 Cal.4th at p. 609.) This standard of review applies because ‘the facts are established, the law is undisputed, and the issue’ we must resolve ‘is whether the law as applied to the established facts is violated.’ (Kennedy, supra, at p. 608.) We review the so-called ‘historical facts,’ those factual determinations that underpinned the trial court’s conclusion that the identification procedure was or was not suggestive, ‘under a deferential standard.’ (Clark, supra, at p. 557.) This standard acknowledges that the trial court may have made ‘credibility determinations,’ that ‘contribute[d] to deciding the facts of what had already happened, [but] were not dispositive of the inquiry because the trial court did not have a “first-person vantage’” to whatever ‘facts occurred outside of court.’ (Kennedy, supra, at p. 609.)” (People v. Wilson, supra.)

“‘An identification procedure is suggestive when it emphasizes the focus upon a single individual thereby increasing the likelihood of misidentification.’ (Citation) ‘To determine if an identification procedure was unduly suggestive, the court must examine the totality of the surrounding circumstances.’ (Citation)” (United States v. Carr (9th Cir. 2014) 761 F.3rd 1068, 1073-1077; identification of three robbery suspects from a “stack” of 12 similarly appearing individuals, upheld.)

The trial court may examine the photos and determine for itself if the display of photographs was fairly presented. (People v. Beivelman (1968) 70 Cal.3rd 60, 78; People v. Lawrence (1971) 4 Cal.3rd 273, 279.)

A “six-pack photo array” lineup with defendant in the #5 position (middle, lower), with his name and an identification number written directly below his picture when no such information was shown under any of the other photos, was held to be impermissibly suggestive, and should not have been allowed into evidence at trial. (People v. Carlos (2006) 138 Cal.App.4th 907.)

Despite the differences, there was nothing that caused defendant to “stand out” from the others in a way that would suggest to the witness that he should select him. (Ibid.)

“(T)he law does not require a perfect lineup, only that it be a lineup that is a fair one, and that it not be impermissibly suggestive.” Minor variations in the depicted persons’ appearance do not make it an overly suggestive lineup. Also, advising the witness that she “should not infer anything from the fact that the photographs are being shown to you or that we have a suspect in custody at this time” was legally sufficient. It is not necessary that the witness be told that the suspect may not be in the lineup, that the suspect’s head and facial hair could have changed since the crimes, and that an equally important purpose of a lineup is to clear innocent persons and not just identify guilty ones. It is also not necessary to use a “double blind” procedure in which the administrator of the lineup procedure is also unaware of which photo depicts the suspect. The law does not require “that certain prelineup admonitions be given before a victim views a photographic lineup or that it be administered in a double blind procedure.” (People v. Lucas (2014) 60 Cal.4th 153, 235-237.)

Also, the fact that there might be other less-suggestive photos available was properly excluded by the trial court. “(T)he relevant issue before the jury was whether the photographs actually used in the lineup were suggestive and if so how that impacted the credibility of Robertson's identification of defendant.” (Id., at pp. 279-280.)

Even though defendant was the only African-American in a six-photo array, the five other men were similarly complexioned, had dark hair, and had mustaches. As the trial court remarked, defendant’s “racial characteristics are not outstandingly apparent.” And even if defendant’s race made him standout, the lineup overall was “nevertheless reliable under the totality of the circumstances.” (People v. Clark (2016) 2016) 63 Cal.4th 522, 557-558.)

Such a determination takes into account “such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (Id., at p. 558.)

It was also ruled that minor variations in background color or discoloration of the photograph don’t make a photo lineup unduly suggestive. (Id., at p. 557.)

“‘(T)here is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance [citations] . . . .’ [Citations.] Thus, courts have upheld lineup identifications despite the existence of similar or greater disparities among the lineup participants.” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1361.)

A photo lineup is not unduly suggestive solely because it does not “depict persons of the same race or ethnic group.” Even if the defendant was the only Native American in the lineup, the court noted that all of the men featured in the lineup shared similar physical characteristics such that defendant’s ethnicity did not isolate him. In addition, while defendant claimed that his Native American neck tattoo made him stand out, he pointed to no evidence in the record suggesting that his tattoo was distinctively Native American while the other men’s tattoos were not. Because the identification procedures were not impermissibly suggestive, the court concluded that the district court properly allowed the evidence of the photo line up to be submitted to the jury. (United States v. Whitewater (8th Cir. NE 2018) 879 F.3rd 289.)

Showing the victim a single photograph, taken from a surveillance camera, after having already showed the victim photos of others taken from the same surveillance footage, held not to be suggestive. (People v. Chavez (2018) 22 Cal.App.5th 663, 676.)

A defendant has to first establish the photo identification procedure was impermissibly suggestive. Next, even if the court determines that the identification procedure was impermissibly suggestive, the out-of-court identification is still be admissible if the identification was sufficiently reliable “to preclude the substantial likelihood of misidentification.”

In this case, although defendant’s photo was dark and blurry, the court found that it did not look “strikingly different” from the five filler-photos. (United States v. Saint Louis (4th Cir. 2018) 889 F.3rd 145.)

Defendant argued that a witness’ identification of his photograph was unduly suggestive because the six-pack array shown to the witness made defendant appear distinct from the other five individuals depicted, claiming that the lineup was suggestive because his image stood out to the witness. In particular, defendant contended that the witness found the shape of his mouth remarkable where no other person had a similar mouth shape. Defendant argued there should have been “fillers” in the photo array; i.e., he claimed the array should have included photographs of other individuals who shared the characteristic mouth shape the witness found unique. Because the witness believed defendant to be the only individual in the array with the uniquely shaped mouth, he argued that the procedure was impermissibly suggestive. The Court concluded that defendant’s argument lacked merit, holding that in evaluating the suggestiveness of a photo array, a court is to consider “whether anything caused defendant to ‘stand out’ from the others in a way that ‘would suggest the witness should select him.’” (Citing People v. Carpenter (1997) 15 Cal.4th 312, 367.) Per the Court, “standing out” requires more than the defendant potentially being a different race than others pictured or having a photo background slightly different than other images in the array. (People v. Wilson (2021) 11 Cal.5th 259, 283-284.)

Burden of Proof: The burden is on the defendant to show that the identification procedure resulted in such unfairness that it abridged his rights to “due process.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051.)

As long as the defendant’s photo does not stand out in some unique way, the photographic lineup will be held to be sufficiently neutral. (People v. Gordon (1990) 50 Cal.3rd 1223, 1243; People v. St. Germain (1982) 138 Cal.App.3rd 507, 520.)

It was held that there was no substantial likelihood of misidentification where defendant’s photo was one of six in a lineup, his photo was similar to the other five, the witness had had an ample opportunity to observe defendant during the crime and was instructed that the perpetrator was not necessarily included in the lineup and that he had no obligation to identify anyone. Despite all this, the witness had no difficulty identifying the defendant. (People v. Cunningham (2001) 25 Cal.4th 926, 990.)

Minor differences in facial hair do not make a photographic lineup impermissibly suggestive, nor is it necessarily important that the defendant was the only one shown in jail clothing, at least where the witness does not recognize the clothing as from a jail. (People v. Johnson (1992) 3 Cal.4th 1183, 1217-1218.)

Differences in background color or image size also will not invalidate a photographic lineup. (People v. Holt (1972) 28 Cal.App.3rd 343, 349-350; photo identification from a mix of black-and-white and color photographs not unduly suggestive.)

It matters not where in the photo array the defendant’s picture is positioned. (People v. DeAngelis (1979) 97 Cal.App.3rd 837, 841; People v. Johnson, supra.)

The fact that defendant’s photograph was in the number 4 position in both of two separate lineups where the showings of the two photo lineups occurred a month apart and a different photo of defendant was used in each lineup, did not make the lineups unduly suggestive. (People v. Yeoman (2003) 31 Cal.4th 93, 124.)

Reusing some of the same pictures in a second photo lineup, with a new picture of the defendant, does not make the lineup suggestive. (People v. Johnson, supra, at p. 1217.)

The fact that defendant’s photograph had a wider border and a semi-glossy finish, while the other photographs all had a more narrow border and a glossy finish, are “trivial distinctions” and “immaterial.” (People v. Carter (2005) 36 Cal.4th 1114, 1162-1164.)

Also, although it is a better idea not to have each individual witness sign their name on the back of the photo selected, where subsequent witnesses would see it thus reinforcing the strength of their identification in the mind of each respective witness, this procedure did not cause an impermissibly suggestive lineup procedure. (Ibid.)

Right to Counsel: Defendant does not have the right to the presence of counsel during a photographic lineup procedure. Defendant is not only not yet charged, but is not even present himself, for a photo lineup. (People v. Adair (1969) 2 Cal.App.3rd 92, 96.)

Procedure:

Where the defendant objects to an in-court identification not yet made, on the basis that it is the result of an impermissible pretrial photographic procedure, the trial judge should take evidence out of the jury’s presence to determine whether the photographic procedure tainted the in-court identification. (People v. Enos (1973) 34 Cal.App.3rd 25 38; People v. Vanbuskirk (1976) 61 Cal.App.3rd 395, 401, 403.)

“Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness’s identification the identity of the person suspected by the police. (People v. Hunt (1977) 19 Cal.3rd 888, 893.) However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. (People v. Wimberly (1992) 5 Cal.App.4th 773, 790.) Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect’s photograph is much more distinguishable from the others in the lineup. (See People v. Johnson (1992) 3 Cal.4th 1182, 1215-1218 [where the defendant was the only person in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [where the defendant was the only man in a red shirt].)” (People v. Brandon, supra, at p. 1052.)

Showing five photos arranged loosely in a stack, one at a time, was approved by inference when the court noted that this procedure helped to show that the victim “was not influenced by any so-called ‘filler’ photographs.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

It is helpful if the investigator tells the witness not to assume that the person who committed the crime is in the lineup, that it is equally important to exonerate the innocent, and that the witness has no obligation to identify anyone. (People v. Cunningham (2001) 25 Cal.4th 926, 990; People v. Johnson (1992) 3 Cal.4th 1183, 1218.)

Showing witnesses to a robbery a photographic lineup immediately after showing them a surveillance photo, done for the purpose of refreshing the witnesses’ recollection, was not impermissibly suggestive. (United States v. Beck (9th Cir. 2005) 418 F.3rd 1008; see also People v. Ingle (1986) 178 Cal.App.3rd 505, 512-514; People v. Johnson et al. (2010) 183 Cal.App.4th 253, 271-274.)

Sanctions for an Impermissibly Suggestive Photo Lineup: Should a photographic lineup be found to be impermissibly suggestive, the witness may be precluded from identifying the defendant when later testifying at the trial.

This determination is made by considering the following factors:

The opportunity of the witness to view the suspect at the time of the offense;
The witness’s degree of attention at the time of the offense;
The accuracy of his or her prior description of the suspect;
The level of certainty demonstrated at the time of the identification; and
The lapse of time between the offense and the identification.

(People v. Cunningham, supra, at p. 989; People v. Johnson, supra, at p. 1216; People v. Gordon (1990) 50 Cal.3rd 1223, at p. 1242; Manson v. Brathwaite (1977) 432 U.S. 98, 104-107 [53 L.Ed.2nd 140]; Neil v. Biggers (1972) 409 U.S. 188, 199-200 [34 L.Ed.2nd 401]; United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 891.)

Note: It is also helpful to simply ask the eyewitness on the stand: “Are you identifying the defendant today based upon what you saw in the photographic (or curbstone or live) lineup, or are you remembering him from the offense itself?”

Eyewitness Certainty:

Eyewitness identification evidence is perhaps one of the more dangerous forms of evidence a prosecutor can use, given the inherent, and potential, fallibility of a witness’s ability to make an identification and to remember how a person looked, particularly when the witness’s observation of a suspect is made under stressful circumstances.

“Eyewitness certainty,” and the correctness of a witness’s identification, therefore, is something that may well become a matter of contention in any criminal prosecution. (See People v. Sánchez (2016) 63 Cal.4th 411, 461-462; and People v. Rodriguez (2019) 40 Cal.App.5th 194, 199-200.)

A trial court, therefore, may give jury instruction CALCRIM No. 315, related to eyewitness identification and certainty, which reads as follows:

You have heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave truthful
and accurate testimony.
In evaluating identiﬁcation testimony, consider the following questions:

Did the witness know or have contact with the defendant before
the event?
How well could the witness see the perpetrator?
What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, and <insert any other relevant circumstances>]?
How closely was the witness paying attention?
Was the witness under stress when he or she made the
observation?
Did the witness give a description and how does that description compare to the defendant?
How much time passed between the event and the time when the witness identiﬁed the defendant?
Was the witness asked to pick the perpetrator out of a group?
Did the witness ever fail to identify the defendant?
Did the witness ever change his or her mind about the identiﬁcation?
How certain was the witness when he or she made an identiﬁcation?
Are the witness and the defendant of different races?
[Was the witness able to identify other participants in the crime?]
[Was the witness able to identify the defendant in a photographic

or physical lineup?]

In 2021, the California Supreme Court called into question the validity of the factor related to the certainty of the eyewitness’ identification, noting a “near unanimity in the empirical research” that confidence expressions track poorly with accuracy, and that jurors overvalue them. The Court ultimately decided that the Judicial Council is best suited to reform the CALCRIM instruction. “Accordingly, in the exercise of our supervisory powers, we direct our trial courts to omit the certainty factor from CALCRIM No. 315 until the Judicial Council has the opportunity to consider how the language might be better worded to minimize juror confusion on this point [unless the instruction is requested by the defendant].” (People v. Lemkcke (2021) __ Cal.5th __.)

The Court ultimately rejected defendant’s due process claim and affirmed his convictions, noting that he was afforded ample expert testimony challenging the identification, and where his counsel otherwise vigorously attacked it.

Conclusion:

Lineups are not only a valuable means by which the defense can test the strength of the prosecution’s case, but also are a necessary investigative tool for law enforcement in determining the presence or absence of probable cause. Prosecutors should also look at lineups as important and usable evidence of a defendant’s identity as the perpetrator.

Rather than being considered an impediment to a prosecution, the above rules should be looked at as a means for insuring that the right person is being prosecuted and that the eventual conviction will withstand the test of an appeal.

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