Lineups and Facial Tattoos

How should a law enforcement officer conduct a lineup when the suspect has a facial tattoo?

More than one in five American adults now has a tattoo according to a recent Harris poll. My sense is that facial tattoos, although still uncommon, are also increasing in popularity. But when a person with a facial tattoo is suspected of a crime, the investigating officer may face a conundrum: how to conduct a lineup where “the suspect does not unduly stand out from the fillers” and “[a]ll fillers . . . resemble, as much as practicable, the eyewitness’s description of the perpetrator in significant features, including any unique or unusual features”? G.S. 15A-284.52.

Find fillers with tattoos. In some instances, it may be possible to find fillers who have facial tattoos that are generally similar to the suspect’s. Teardrop tattoos, for example, are relatively common, so officers may be able to find several fillers with such tattoos. (As an aside, according to Wikipedia, teardrop tattoos carry many meanings, including that the person with the tattoo has been in prison; has killed someone; has been a victim of sexual violence; or has had a loved one killed.)

Create fillers with tattoos. The United States Department of Justice produced a guide for law enforcement regarding eyewitness evidence that recommends “[c]reat[ing] a consistent appearance between the suspect and fillers with respect to any unique or unusual features (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature.” Court opinions reveal that this technique has been used. See, e.g., Garza v. State, 2008 WL 4271701 (Tex. Ct. App. Austin Sept. 19, 2008) (unpublished) (noting that “[b]ecause appellant has a teardrop tattoo under his left eye, to ensure a representative lineup, [an officer] digitally enhanced three other pictures in the array to show tattoos under the subjects’ left eyes,” and finding that the result was not unduly suggestive).

In at least one case, an officer removed a tattoo from the suspect’s picture rather than adding it to the fillers’ photographs. State v. Preston, 40 So.3d 1052 (La. Ct. App. 5 Cir. 2010) (noting that “a computer technique removed the tattoo on the defendant’s face so that all photographs had no tattoo”). I don’t think that altering a suspect’s appearance is advisable, even if done with the best of intentions, because it tends to undermine the reliability of any resulting identification.

Use fillers without tattoos. In some instances, it may be permissible to have a lineup in which the suspect is the only one with a facial tattoo. This is particularly so if the suspect’s tattoos are not extremely prominent and were not part of the description of the suspect given by the eyewitness. See, e.g., Stewart v. State, 131 So. 2d 569 (Miss. 2014) (photographic lineup was not unduly suggestive; although the defendant was the only person in the lineup with facial tattoos and a victim testified at trial that the perpetrator’s tattoos were “what stuck out the most” about him, the tattoos were not extremely prominent and the victims had an ample opportunity to observe the perpetrator and were very confident in their identification of the defendant); United States v. Lang, 2007 WL 1725548 (5^th Cir. June 14, 2007) (unpublished) (rejecting the defendant’s argument that a “lineup . . . contained no other photographs of a man with a tattoo on his face [and was therefore] impermissibly suggestive”; police stations “are not theatrical casting offices” and a reasonable effort to find fillers is sufficient); Gonzalez v. Jacquez, 2011 WL 4550151 (C.D. Cal. May 19, 2011) (unpublished) (“The fact that Petitioner was the only person with a head tattoo does not suggest that the lineup was impermissibly suggestive. Rather, it shows only that Petitioner had a unique identifying characteristic. More importantly, however, nothing suggests that the other individuals in the live lineup did not resemble Petitioner’s general physical appearance.”).

If anyone has experience with this issue, please weigh in using the comments feature.