This article is intended to help you understand how you may challenge an Arizona line up, show up or photo array. For a consultation today, please contact Howard Snader at the Snader Law Group in Phoenix, Arizona.
We’ve all watched movies or television shows where an eyewitness to a crime picks an alleged offender out of an Arizona line up or makes a dramatic courtroom identification. In fact, the success or failure of criminal prosecutions often turns on the believability of eyewitness identification. However, research suggests that for many reasons eyewitness identification is unreliable in a large number of cases.
One national organization that has used DNA evidence to overturn numerous wrongful convictions states that eyewitness misidentification played a role in more than seventy percent of the convictions the organization overturned. Thus, while eyewitness identification is a powerful prosecution tool, the evidence can be suspect, and the consequences of misidentification are grave. Therefore, if the government’s case against you includes any form of eyewitness identification, the importance of hiring an Arizona criminal defense lawyer who knows how to challenge this evidence cannot be overstated.
Throughout the investigation and prosecution of a criminal case, the government may rely on a variety of forms of eyewitness identification.
Sometimes the police ask a witness to come and view an “Arizona line up,” which is a group of individuals standing in a line. The witness views the individuals and attempts to identify the person the witness previously viewed committing a crime.
A “show up” occurs when law enforcement presents a single individual to a witness for identification. The witness is asked to state whether the individual is the perpetrator of the crime. Showups are particularly suggestive and should be reviewed carefully.
Photo arrays are similar to line-ups, but use a collection of photographs, rather than live people. The witness views the photographs and attempts to identify the perpetrator.
Finally, in-court identifications occur when an eyewitness identifies a perpetrator inside the courtroom during a hearing or trial.
Once a prosecution against a defendant has begun, the defendant is entitled to notice of an impending lineup or show up, and to have his counsel present. The United States Supreme Court has noted that the presence of counsel protects both the defendant and the fairness of the identification process. If the State violates this right to counsel, the defendant can successfully prevent the prosecution from presenting at trial evidence of the pre-trial identification. For example, in one Arizona case, a defendant requested that his court-appointed counsel attend a lineup. The defense lawyer did not appear and the lineup proceeded anyway. The court properly prohibited use of evidence of the identification made at the lineup.
However, even if evidence of the pre-trial identification is suppressed, the prosecution may or may not be able to use the eyewitness for an in-court identification. The government must first prove to the judge that the in-court identification is based on the witness’s observation of the defendant other than at the improper lineup or show up. If the government cannot meet its burden of proof, the eyewitness will not be permitted to make an in-court identification.
For a variety of reasons, the defendant and his counsel do not have a constitutional right to be present at a photographic array lineup. One reason for this exception is that the photographic array can be re-created at trial, making it possible to review the fairness of the array at that time.
Regardless of whether or not a defendant has a right to counsel, the procedure employed by law enforcement to obtain an eyewitness identification, including the use of a photo array, must meet Constitutional Due Process standards. Eyewitness identification evidence will be suppressed if the lineup, show up, or photo array was unduly suggestive and the circumstances were so unduly suggestive that, based upon the totality of the circumstances, they created a substantial likelihood of irreparable misidentification.
Whether or not a procedure is “unduly suggestive” can be a difficult question, which often must be determined by a judge after reviewing all the relevant facts. For example, producing a lineup with six men, but only one who shares the same ethnicity or racial background as the perpetrator would likely be considered unduly suggestive. Similarly, a criminal defense lawyer could argue that a lineup or array is unduly suggestive if the members of the group do not wear similar clothing as the defendant, or do not share various common characteristics with the defendant, such as age, height, weight, appearance, and hair color.
If a court determines that a procedure was unduly suggestive, it must then determine whether the circumstances created a substantial likelihood of irreparable misidentification. The United States Supreme Court has listed the following factors to consider in making the determination:
The length of time between the crime and the confrontation.
After reviewing all the circumstances, if the court determines that due process has been denied, evidence of the identification will be suppressed.
Even if the State is permitted to introduce evidence of an out of court identification, or solicits an in-court identification from an eyewitness, a skilled criminal defense lawyer still has several tools with which to attack the identification.
In some cases, an Arizona criminal defense attorney may elect to offer the testimony of an expert witness concerning eyewitness identification. While Arizona courts usually limit the scope of the subject matter to which the expert can testify, an expert witness may assist the defense under the appropriate circumstances.
A criminal defense attorney may always attack eyewitness identification during cross-examination. Even when eyewitness testimony is permitted, an effective attorney can point out all the shortcomings of the identification procedure, along with all the limitations of the eyewitness, and attempt to persuade the jury that the lineup, show up, or photo array was tainted.
In a jury trial, under the appropriate circumstances, an attorney can request that the judge provide the jury with a cautionary instruction on eyewitness identification. Such an instruction can be used hand-in-hand with cross-examination and expert testimony to support a lawyer’s argument to the jury that eyewitness identification in the case should not be trusted.
If someone has identified you as the alleged perpetrator of a crime at an Arizona line up, show up, or photo array, call our Arizona criminal defense lawyer. We will pursue all available avenues to challenge and discredit the eyewitness identification.
