Introduction – the Very Real Danger of Misidentification as a Result of One on One Show-ups at the Scene of a Colorado Criminal Investigation
A “show-up” is a procedure used by the police where a lone potential suspect of a recently committed crime is presented in person to an eyewitness to determine if that individual was involved in the commission of the crime.
While identification procedures are necessary to the investigation and to the prosecutions of crime – the “show-up” identification procedure, as discussed in this short piece, is the least reliable of all identification evidence.
The risk of false identification is very real. It is well accepted that erroneous eyewitness identifications are the single greatest cause of wrongful convictions in the United States… responsible for more wrongful convictions than all other causes combined.
Solid, sound, well respected, and accepted research in this area has demonstrated that eyewitness identification testimony that has been derived from the show-up procedure presents a dual problem. Not only are show-ups unreliable, but they can also inflate the eyewitness’s confidence resulting in a deadly lack of accuracy followed by a dangerous and unsupported “culture of overconfidence.”
Notwithstanding this fact, the majority of states, including Colorado, follow an outmoded and poorly designed legal framework for determining whether and when show-up evidence is admissible at trial.
Sidebar 1: The Second Collision – the Real Perpetrator Gets Away
The impact on the criminal justice system does not end with the wrongful convicting of an innocent person. A falsely identified person arrested and prosecuted ends the investigation. Law endorsement will not look behind the “ID” as they have no way of determining that the show-up identification is false and have little or no motivation to “keep looking.”
As a result, the innocent suspect is arrested and prosecuted and the true perpetrator remains at large.
An Example of a Show-Up Case
The typical show-up results when police dispatch is notified of either an ongoing or recently committed crime. For this hypothetical, let’s use an example – the Colorado crime of “aggravated robbery.”
A description of the alleged perpetrator is aired. The description aired over dispatch is that of a young man of medium height, wearing a ball cap and a black jacket. The gun used in the “ag rob” is described as a shiny revolver.
Police begin scouring the location of the robbery and they quickly spot a man loosely matching this vague description roughly two blocks from the crime scene.
Seeing the police patrolling his neighborhood, the man turns to walk away.
Since the young man vaguely matches the description aired and, he has the temerity to attempt to try to evade the police and walk away, he is immediately stopped and patted down for weapons.
No weapons of any kind are found on him and no other suspects are found.
The young man is now detained for a show-up procedure and is placed in the back of the squad car.
The eyewitness is driven to the location of the suspect. The suspect is removed from the squad car and surrounded by three officers. The witness is driven slowly past the suspect. The suspect is handcuffed and is standing alone in the lights of the police vehicles.
The police ask the witness if he can identify the suspect as the perpetrator. The eyewitness replies that he can.
Although the witness has seen the alleged perpetrator for only a few seconds, at night, during one of the most stressful incidents of his life, he is convinced that the police arrested the right man.
He positively identifies the suspect as the perpetrator of the aggravated robbery. The identification confirms law enforcement’s suspicion that the individual has “their man.”
The young man is arrested and hauled away to jail to face prosecution and certain prison if he is convicted at trial.
The Research – Faulty Eyewitness Identifications are the Leading Cause of Wrongful Convictions in the United States
More than fifty years ago, the United States Supreme Court observed that:
“[I]dentification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.
The … annals of criminal law are rife with instances of mistaken identification.”
United States v. Wade, 388 U.S. 218, 228 (1967).
Just one of the dozens of studies on eyewitness testimony found that “of forty cases in which convicted persons were later exonerated through DNA testing, … 90% of the convictions were obtained, at least in part, by erroneous eyewitness identifications.”
Eyewitness Identification Procedures, 22 Law & Hum. Behav. 603, 605 (1998)).
This study concluded that mistaken eyewitness identification is responsible for more of these wrongful convictions than all other causes combined.
The well-known and well-respected Innocence Project found that more than 70 percent of DNA exonerations involve eyewitness misidentification.
In another study of the first 200 cases of post-conviction DNA exonerations, nearly 80 percent included at least one eyewitness who mistakenly identified the innocent defendant.
Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 76 tbl. 2 (2008).
No Cross-Examination to Test Witness Accuracy During the Show-Up Procedure
Unlike a courtroom identification procedure, which also is inherently suggestive and suspect (see below), at least at trial, the accuracy of an eyewitness’s in-court identification is subjected to cross-examination.
At the scene of a show-up, there is no “test” of the strength of the ID. Cross exam tests the critical difference between the confidence a witness may express in the identification and the accuracy of that identification.
An eyewitness will invariably feel pressure to try to “help” the police and may actually believe that by not identifying this person or by expressing some doubt, charges may never be filed in the case.
It is unquestionably true that an eyewitness’s degree of attention is clearly influenced by the stress and anxiety of the moment. That fact is not flushed out until later, at trial, when it is much more difficult to attack that accuracy of the “ID” after the eyewitness has had months to “self-convince” and may then doggedly adhere to their previous identification.
The Memory Trap – How Identification Goes Wrong
After literally decades of social-science research on human memory cognitive psychologists have long “established that when we experience an important event, we do not simply record it in our memory as a videotape recorder would.”
Loftus et al., Eyewitness -Testimony (5th ed. 2013).
The process of “remembering” is “an imaginative reconstruction or construction…. It is thus hardly ever really exact”
Bartlett, Remembering (1932)
An individual’s memories are often incomplete or distorted as a result of that person’s state of mind or the nature of the event observed.
Memory involves three discrete stages:
(1) the acquisition or encoding stage, when a witness perceives an event and information is entered into the memory system;
(2) the retention or storage stage, the period between acquisition and the witness’s attempt to recall the information; and
(3) the retrieval stage, when the witness attempts to recall the stored information.
Some of the factors that “distort” the accuracy of our recall are impacted by:
∙ the duration of an event,
∙ a witness’s age,
∙ the passage of time,
∙ post-event information (which can contaminate the witness’s memory during the retention stage),
∙ the method of questioning at the time of the storage of the memory when it is retrieved.
These factors basically fall into two categories: system variables and estimator variables -which are defined as follows:
Estimator variables are those that police and prosecutors cannot impact. Examples include the circumstances of a crime: lighting, the witness’s distance from the alleged perpetrator at the time of the crime, whether a weapon was present, or whether the witness and perpetrator are of the same race.
System variables can be the method of interviewing or instructing the eyewitness and are well within the control of law enforcement.
Cross-examination at trial attacks BOTH types of variables.
The Motion to Suppress – the Primary Defense Tool Used to Challenge an Unlawful Show-up Identification Procedure
Let’s revisit the aggravated robbery case above.
After the show-up “ID” and the arrest, the case is then filed with the District Attorney (DA) for charging.
The DA, relying on the ID, files aggravated robbery charges.
The accused pleads not guilty and the matter is then set for a jury trial.
Before the trial, the defense attorney will file a motion to suppress the identification made at the show-up and any evidence derived from the unconstitutionally obtained identification.
The motion to suppress is primarily based on due process (fairness) grounds and will make the case that the show-up was constitutionally improper and the evidence should be suppressed as the “fruit” of an unlawful and invalid identification procedure, and therefore an unlawful arrest.
Attacking the Flawed Show-up Procedure – Questions That Should Be Asked
Attacking a flawed show-up identification at the motion to suppress will primarily focus on the methods employed by the police – the so-called “system variables” – the method of interviewing or instructing the eyewitness and are well within the control of law enforcement.
When conducting a show-up – essentially putting a single suspect in front of an eyewitness – the inherent suggestiveness of the encounter will be the subject of rigorous and effective cross-examination of the reasons why a judge should reject the identification as unconstitutionally obtained.
Questions that may help to expose the suggestiveness of the show-up procedure include, but are not limited to:
∙ Was the eyewitness transported to view the suspect rather than transporting the suspect to the eyewitness’s location?
∙ Did the officer transporting the eyewitness to view a showup discuss the suspect or mention other supporting evidence about the suspect might have been obtained (such as statements, any corroborating physical evidence, or other witness identifications)?
∙ What were the exact words used to instruct the witness about the process or procedure that would be followed?
∙ Was the eyewitness visible to the suspect and vice versa?
∙ Were there multiple eyewitnesses for a showup procedure and were they each transported to view the suspect in separate vehicles?
∙ If there were multiple eyewitnesses, were they prevented from speaking to each other about the identification procedure?
∙ At the end of the show-up was the eyewitness admonished not to discuss the identification procedure with any other eyewitness?
∙ Was the suspect handcuffed or in a patrol vehicle at the time of the show-up?
∙ Did the officer conducting the show-up comment, nod, or make ANY gesture, positive or negative, about the eyewitness’ identification of the suspect?
∙ What were the physical circumstances of the show-up; the lighting, weather, the approximate distance between the eyewitness and suspect?
∙ What was the length of time between the suspect’s detention and the show-up identification procedure?
∙ If there were multiple suspects that have been detained, were these different suspects distanced from each other so that the show-up eyewitness could view each suspect one at a time?
∙ What were the exact statements, comments, or physical reactions of the eyewitness during the show-up identification procedure? (Was there an audio/video recording?).
Sidebar 2 – The Follow-up In Court Identification of the Accused At Trial
After a show-up has led to the identification of the accused, what follows at trial is the in-court identification moment.
It is hard to imagine a more suggestive identification procedure than a witness testifying on the witness stand at trial and being asked to identify the alleged perpetrator of the crime charged. The witness looks around the courtroom. There is the defendant sitting at the defense lawyer’s table, behind the defendant’s nameplate. A person, identified by the state of Colorado as having committed the crime charged.
It is in this environment that the District Attorney then asks the eyewitness to point, yes point, at the person who committed the crime.
An in-court identification is even more suggestive than a show-up and is often the direct result of that show-up. At the show-up, while the eyewitness may assume that the police suspect the individual is responsible, at trial, they KNOW the police and the DA believe the defendant is guilty.
At the show-up, the police may try to “mitigate” the inherent suggestiveness of the show-up by instructing the witness that the person they are viewing “may or may not be the person you will see” and that “the investigation will continue regardless of whether or not you make an identification.”
At trial, it is all too clear to the witness that they are expected to conform their identification to their previous show-up identification. There is no anonymity for the witness, if anything, the confidence of the eyewitness may actually have increased as a result of gaining more information about the case over the lengthy trial preparation process.
One of the most dramatic moments in any trial is the identification of the accused. It is apparent to anyone in the courtroom that a jury is not only overly receptive to identification evidence, that jury has no idea as to the flawed procedures that have brought the jury to this moment in time.
Eyewitnesses are tremendously powerful at this moment. No other evidence is more persuasive than an eyewitness, who, after taking an oath to tell the truth, confidently points at the defendant and proclaims that he saw the accused commit the crime charged by the state of Colorado.
Hope On the Horizon – Controlling Show Procedures – Colorado House Bill HB 21-1142
At this moment, (April 2021), the Colorado State Legislature is considering a bill that could “fix” many of the issues raised in this article. The bill creates requirements and conditions that must be followed when a show-up is conducted.
The Legislative declaration of HB 21-1142 states as follows:
(1) The general assembly finds and declares that:
(a) Show-up identifications are inherently suggestive, and, compared to properly conducted lineups and photo arrays, showups are more likely to yield false identifications; and
(b) To prevent improper identifications and reduce eyewitness identification error, showup identifications should be admissible only when the show-up was necessary because police otherwise lacked probable cause that would permit an arrest and a proper lineup or photo array, or other exigent circumstances required an immediate identification procedure.
The new law, if enacted, prohibits a trial court from admitting evidence of a show-up identification unless the court finds that the show-up was conducted pursuant to the statutory requirements and the court determines that the show-up was necessary because:
1. The peace officer lacked probable cause that permitted an arrest that would have allowed for the use of a lineup or photo array; or
2. Exigent circumstances required an immediate identification procedure.
3. This new law should have our support as it is a major breakthrough intended to solve the issues raised above.
Furthermore, Colorado law enforcement HAS begun the process of re-examining the show-up procedure and substantial progress has been made in this area. (See Colorado Best Practices Comm., Model Policy and Forms for Eyewitness Identification – Internal Law Enforcement Best Practice Show Up Policies and Procedures).
Summary and Conclusion – Understanding Colorado One on One Show-Ups ID Procedures A Closer Look
Law enforcement has argued for decades that show-up identifications are based solely on concerns for public safety; the need for a fast and efficient police investigation on the heels of the commission of a crime, and the need to in the immediate to promptly confirm or rule out possible suspects.
I continue to reject those arguments. While Colorado criminal and procedural laws continue to try to add protections to prevent false identifications, we are far from resolving these issues and protecting the innocent.
I have written on the important subject of identification procedures before, many times, and my position is clear, the arguments in support of the show-up procedure fail as the use of the procedure comes at too high a price, the possible conviction of the innocent.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.