Eyewitness identification of a defendant as the perpetrator of a crime is subject to scrutiny by the court, but that does not necessarily implicate constitutional protections. Let’s break it down in simple terms. There are two situations where identification is an issue: where the witness identifies the person on their own, without a police staging of suspects, and then where there is a police staging of suspect. Each situation triggers a different issue.

When the Witness comes forward on his/her own

Let’s set the stage: Jane Doe witnesses a person breaking  into her house, she recognizes that person as her neighbor. She calls the police and tells them to come to her home and when they get there she points them in the direction of her neighbor. Joe Schmoe is arrested based on her identification and goes to trial.

When the witness identifies a suspect on his or her own, the issue is one of credibility. In this situation, the jury gets to decide whether the identification is correct and how much weight to give that eyewitness’s identification. The witness’s testimony is cross examined by the defendant, and, as is described in the confrontation clause blog post, the defendant attempts to put the jury in doubt as to the witness’s credibility.

For example, an attorney might say, “Ms. Doe, isn’t it true that you’ve hated Mr. Schmoe since he accidentally chopped off the top of your prized peony with his lawn mower?” or “Ms. Doe, isn’t it true that you have extraordinarily bad eyesight and you weren’t wearing your glasses?” This cross examination acts as a safeguard; the defendant can show the jury that the eyewitness is not reliable.

In the end though, when the eyewitness identifies the person on their own, without police assistance, the issue is entirely up to the jury as to whether the person got the identification right.         The judge has no right to preview the issue and prevent the testimony, even if the eyewitness is completely blind and deaf.

When the Police Use Identification Procedure

Let’s give a new example: Victor Vitim is robbed at gunpoint. He saw the person’s face, and gives a description to the police, but he does not know the suspect by name. The police arrest Danny Defendant, who vaguely fits Victor’s description. Then they set up a line-up and Victor identifies Danny as the person who robbed him. Danny goes to trial.

When the police are involved in getting the identification of the accused, the protection for the defendant becomes a two-step question: was the identification tainted by police arrangement, and did the jury find the eyewitness credible. When the government is involved in identification, the courts must ensure that the defendant’s due process was protected.

Police arranged identification procedures cannot be suggestive or unnecessary. Suggestive circumstances occur when the defendant is the only person who even comes close to fitting a physical description, for example. Unnecessary circumstances occur when the eyewitness says he or she saw nothing, and yet the police insist on getting identification from the witness, for example. Either situation, alone, would be enough to cast doubt on the due process protections given to the defendant.

However, being suggestive or unnecessary is not enough to violate due process sufficiently to get the identification suppressed. If the identification was shown to be unnecessary or suggestive, the court then looks at the facts around the case, and make a determination of whether the police conduct created a “substantial likelihood of misidentification.” The process must have been (1) suggestive or unnecessary, AND (2) gives a substantial likelihood of misidentification.

Where indication that the witness could make an accurate identification are outweighed by the police’s corrupting effect, then the identification should be suppressed.

If that standard cannot be met, the issue continues to trial where the jury gets to make the same credibility determination as was described above. The attorney for the defendant may question the witness on the police’s conduct