Effective December 1, S.L. 2015-212 extends the Eyewitness Identification Reform Act, G.S. 15A-284.52, to cover show-ups. But the bill leaves the status of photographic show-ups in doubt and contains a strange provision regarding law enforcement officers as eyewitnesses. This post unpacks the new law.
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Tag Archives: lineups
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 Austin Sept. 19, 2008) (unpublished) (noting that “[b]ecause appellant has a teardrop tattoo under his left eye, to ensure a representative lineup, [an officer] digitally enhanced three other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 (5th 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.
When I first came to the School of Government, I picked a few small areas of law in which I hoped to develop some expertise. One of those areas was the then-new Eyewitness Identification Reform Act. It was enacted in 2007, effective for crimes committed on or after March 1, 2008. S.L. 2007-421. It’s codified at G.S. 15A-284.50 et seq.
As most readers likely know, the Act prescribes procedures that law enforcement officers must follow when conducting lineups. For example, it requires that at least five fillers be included in each lineup; that the individuals or photographs in a lineup be presented to the witness sequentially rather than simultaneously; that lineups normally be conducted by officers who don’t know the identity of the suspect; and so on.
As I traveled the state talking about the Act to anyone who was willing to listen, one of the questions I received most frequently was whether the law’s provisions applied to show-ups. A show-up, of course, is a procedure “whereby a suspect is shown singularly to a witness or witnesses for the purposes of identification.” State v. Harrison, 169 N.C. App. 257 (2005). They typically take place in the immediate aftermath of a crime, when an officer apprehends a suspect and presents him to the crime victim for confirmation that the officer arrested the right person.
I always said that the Act didn’t apply to show-ups, because by its terms, the it applies only to “photo lineup[s]” and “live lineup[s].” A photo lineup takes place when “an array of photographs is displayed to an eyewitness.” G.S. 15A-284.52(a)(7). A show-up doesn’t involve an “array,” and generally doesn’t involve photographs, so it doesn’t fit there. A live lineup takes place when “a group of people is displayed to an eyewitness.” G.S. 15A-284.52(a)(6). A show-up normally doesn’t involve a “group” of people, so again, it doesn’t fit within the statutory definition.
As the old saying goes, even a broken clock is right twice a day, and I was right about show-ups. The court of appeals recently decided State v. Rawls, in which it held that show-ups are not covered by the Act, more or less for the reasons given above. (The court reasoned in part that “the procedure of a live lineup [as defined in the Act] is inherently inconsistent with the definition of a show[-]up.”) Rawls involved a break-in committed by three people, and all three were apprehended together. So in a sense, the show-up in Rawls did involve a “group” of people, but the court of appeals held that the Act was nonetheless inapplicable.
One final point. Although most show-ups are done live, there are times when an officer will conduct what I think of as a photo show-up. For example, suppose that officer A is investigating drug activity by suspect S. Suppose that officer A asks officer B to make an undercover buy from S. After B makes the buy, A shows B a picture of S and asks, is this the guy from whom you just bought drugs? I think that’s OK, even though A isn’t complying with the provisions of the Act, because it’s a photo show-up. Even though Rawls doesn’t involve a photo show-up, its reasoning appears to apply equally to such procedures.
Category: Evidence, Search and Seizure, Uncategorized | Tags: eyewitness identification reform act, eyewitnesses, line-ups, lineups, rawls, show-ups, showups
In 2007, the General Assembly enacted the Eyewitness Identification Reform Act, G.S. 15A-284.50 et seq. The heart of the Act is G.S. 15A-284.52, which lays out rules for conducting lineups, whether live, i.e., involving the actual suspect and several other fillers, or by photo array, i.e., involving a picture of the suspect and several other fillers. (As an interesting sidebar, I’ve taught about the Act to several groups of officers, and of the 100+ officers I’ve talked to, only two or three have ever conducted a live lineup. Apparently, it’s just too difficult to find appropriate fillers, especially in smaller jurisdictions, and it’s a headache to ensure adequate security.)
There are quite a few rules in the statute, which goes well beyond the constitutional minimum in ensuring that lineups are conducted in a manner that is not suggestive. Yet the question that I am asked the most often doesn’t have to do with any of the specific procedures set out in the statute. Instead, it has to do with whether a lineup is required at all. It usually arises as follows. Law enforcement agency A is investigating suspected drug dealer D. Agency A brings in an officer from another agency to make an undercover buy from D. We’ll call him officer U. Officer U gets all dressed up, goes to D’s place of business, and makes a buy. None of the officers from agency A are able to see the transaction, because it takes place inside. Officer U returns to agency A’s headquarters and turns over the drugs. The officers from agency A want to confirm that Officer U did, in fact, buy the drugs from D. Must Officer U be shown a lineup in compliance with G.S. 15A-284.52?
The answer is no, because Officer U need not be shown a lineup at all. Instead, Officer U can participate in a photo showup: he can look at one picture of D and confirm whether or not D is the person from whom he bought the drugs. In general, G.S. 15A-284.52 doesn’t tell you when to hold a lineup, it only tells you how to hold it. If Officer U is shown a lineup, of course, it must comply with the statute. But he needn’t be shown one at all.
One word about showups. Most courts view showups as inherently more suggestive than lineups, meaning that identifications that result from showups are more vulnerable to challenge in court. See generally Robert L. Farb, Arrest, Search, and Investigation in North Carolina 212 (2003). Still, in this context, where showup takes place shortly after the buy and the person making the identification is a trained officer, the likelihood of suppression is low. Cf, e.g., Wayne R. LaFave et al., Criminal Procedure s. 7.4(f) (3rd ed. 2007) (noting that showups “are commonly permitted when they occur within several hours of the crime”).
Finally, I’m hoping that my use of the photo above falls within the fair use doctrine. It’s a promotional image for the move The Usual Suspects, which I highly recommend.
Category: Procedure, Search and Seizure, Uncategorized | Tags: eyewitnesses, lineups, showups, undercover
