There is perhaps nothing more unfair and suggestive in criminal law than photo arrays. This is a procedure where the police place before a witness several photos and ask if the person who committed the alleged crime is depicted in one of the pictures. Included in the array is a photograph of the suspect and several other people known as fillers. There should be at least six photos and the appearance of the people in the photos should be similar in every regard. The photos should be positioned randomly within the array. The photos should shown to the witness one at a time. Once the witness has viewed a photo that picture should be removed so that only one picture is before the witness at any one time. Nothing suggestive should be said or done during the procedure. The witness should not be told that the suspect is included among the photos. Yet, this is not the way it works. This post looks into some of the problems with the reliability of photo arrays.
The Witness Assumes That The Suspect Is Among The Photos
I have questioned many people who have made identifications through photo arrays. I get candid answers when my interview is done out of court in an informal setting. Every person I have asked about this process assumes that the suspect’s photo is among those shown to him. This is usually because the detective improperly tells them so. Right there the process has been tainted. Even if the judge won’t suppress the identification on this basis I can at least argue it to the jury.
The Photos Are Usually Shown At The Same Time
Notwithstanding the advisable procedure witnesses will tell me that the pictures were laid out all at once, side by side. Often they admit that the suspect’s photo was the first one show to them. Some police officers utilize improper mannerisms during the array procedure as the witness views the photos in their entirety. Such actions suggest to the witness the officer’s desire for them to gravitate towards a photo or stay clear of one. Again, this is improper.
The Filler Photos Are Noticeably Different From The Suspect’s Photo
Regardless of the directive of a police department’s photo identification procedure filler photos are readily distinguishable from the suspect’s picture. I have had clients identified because they were the only person in the array with facial hair. I have had client’s identified where their picture was either significantly darker or lighter than the filler photos. The Boston Police photo ID manual directs the detective to “avoid fillers that so closely match the suspect that a person familiar with the suspect would have difficulty distinguishing the fillers”.
How Can Photo ID’s Be Challenged?
Over the course of a career lawyers are able to save copies of photographic arrays received in the course of discovery. These can be useful years later. I have seen witness go through makeshift photo arrays compiled by the defense wherein they were unable to identify a picture of the defendant among others who were not in the original police array. Imagine that. The same photo not picked out when in an array put together by the defense. I have also seen witnesses identify people other than the defendant in similar circumstances. Again, even if you can’t get this suppressed by the judge the jury is going to question the procedure that police followed as well as the integrity of the original selection.
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