North Carolina Statutory Requirements Concerning How to Conduct Lineups and Show-ups

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Live and photo lineups and show-ups implicate constitutional and statutory requirements. This post will focus on the statutory requirements. For constitutional requirements, see pages 594-98 in Arrest, Search, and Investigation in North Carolina (5th ed. 2016).

In 2007, legislation codified in G.S. 15A-284.50 through -284.53 imposed requirements concerning how officers must conduct live and photo lineups. S.L. 2007-421 (entitled the “Eyewitness Identification Reform Act”). In 2015, additional legislation codified in the same statutes imposed requirements when conducting show-ups. S.L. 2015-212.

Lineups. The term “lineup” in G.S. 15A-284.52 includes live lineups and photo lineups. A live lineup is defined as a procedure in which a group of people is displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the perpetrator of a crime. A photo lineup is defined as a procedure in which an array of photographs is displayed to an eyewitness for the same purpose.

The principal provisions for lineups are as follows:

  • A lineup must be conducted by an independent administrator, defined as a person who is not participating in the investigation of the criminal offense and who is unaware of which person in the lineup is a suspect. This procedure is known as a double-blind lineup because neither the witness nor the officer conducting the lineup knows who the suspect is. For photo lineups, certain alternative methods may be used instead of an independent administrator, such as an automated computer program. See State v. Gamble, ___ N.C. App. ___, 777 S.E.2d 158 (2015) (although a non-independent administrator was used, the administrator satisfied the requirements of G.S. 15A-284.52(c) for such administrators by using folder metho, and met the other legal requirements; no statutory violation).
  • Individuals or photos in a lineup must be presented to witnesses sequentially, with each individual or photo presented to the witness separately and then removed before the next individual or photo is presented. A sequential lineup may reduce the possibility, present in lineups in which a group of people is shown at the same time, that the witness will compare the people in the lineup and pick the person who most closely matches the suspect. The combination of an independent administrator and sequential presentation is known as a double-blind, sequential lineup.
  • Before a lineup is conducted, the eyewitness must receive certain instructions, including that the perpetrator may or may not be present in the lineup and that the investigation will continue whether or not an identification is made. The eyewitness must acknowledge receipt of the instructions in writing and, if the eyewitness refuses to sign, the lineup administrator must note the refusal.
  • At least five fillers (non-suspects) must be included in lineups and, if the eyewitness has previously viewed a photo or live lineup in connection with the identification of another suspect in the case, the fillers in the lineup containing the current suspect must be different from the fillers in prior lineups.
  • If the eyewitness identifies a person in the lineup as the perpetrator, the lineup administrator must seek and document a clear statement from the eyewitness about the eyewitness’s confidence level that the person is the perpetrator. The eyewitness may not be provided any information concerning the person before the lineup administrator obtains the eyewitness’s confidence statement.
  • Unless it is not practical, a video record of live identification procedures must be made. If a video record is not practical, the reasons must be documented, and an audio record must be made. If an audio record also is not practical, the reasons must be documented, and the lineup administrator must make a written record of the lineup.
  • Whether the record is by video, audio, or writing, the record must include specified information, including the identification or nonidentification results, the eyewitness’s confidence statement, the names of everyone present at the lineup, and the words used by the eyewitness in any identification.

Show-ups. The term “show-up” is defined as a procedure in which an eyewitness, including a law enforcement officer, is presented with a single live suspect to determine whether the eyewitness is able to identify the perpetrator of a crime. It requires all officers who conduct a show-up to meet all of the following requirements:

  • A show-up may only be conducted when a suspect matching the perpetrator’s description is located in close proximity in time and place to the crime or when there is a reasonable belief that the perpetrator has changed his or her appearance close in time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness.
  • A show-up may only be performed using a live suspect and may not be conducted with a photograph.
  • Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance when the show-up procedure was conducted.

Statutory remedies for statutory violations. G.S. 15A-284.52 sets forth the remedies for a violation of its provisions. First, failure to comply with any of the requirements “shall be considered by the court in adjudicating motions to suppress eyewitness identification.” Thus, the court must take a violation into account, but a violation does not necessarily require suppression. State v. Stowes, 220 N.C. App. 330 (2012) (trial court did not commit plain error by granting relief under the statute but not excluding evidence of pretrial identification; violation occurred when one of the officers administering the identification procedure was involved in the investigation). It appears that the court is to consider whether a violation constitutes a substantial statutory violation, requiring suppression under G.S. 15A-974. The court also may consider whether a failure to follow the specified procedures affects the reliability of the identification, requiring suppression under the Due Process Clause’s totality of circumstances test. The statute does not explicitly address the question, but presumably the court also may consider whether a failure to follow the lineup or show-up requirements tainted a subsequent identification, rendering that identification inadmissible.

Second, the failure to comply with any requirement is admissible in support of any claim of eyewitness misidentification as long as the evidence is otherwise admissible. Thus, as part of the case at trial, a defendant may offer evidence of a failure to follow the requirements to show that an eyewitness’s identification is unreliable.

Third, when evidence of compliance or noncompliance has been presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of an eye­witness identification. This provision suggests that, in support of an eyewitness identification, the State may present evidence at trial that it complied with the eye­witness identification procedures (if the evidence is other­wise admissible under the Confrontation Clause and the North Carolina Rules of Evidence).

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