An eyewitness identification of a criminal defendant in a pretrial lineup can be a powerful piece of evidence at a California criminal jury trial.
But witness identifications at lineups are famously unreliable.1 Cases of mistaken eyewitness identification are frighteningly common.2
What factors make a pretrial lineup more reliable?
There are measures police can take to make a lineup more reliable. These include:
- Presenting suspects (or photos of suspects) one at a time, rather than altogether (this is known as a “sequential lineup”);3
- Making the line-up “double-blind”—meaning that the officer conducting the lineup does not know which of the participants is the suspect;4
- Telling the witness that the lineup does not necessarily contain the suspect;5
- Separating multiple witnesses from one another, so that they will not know who the others have identified as the suspect;6 and
- Making sure that the defendant is able to exercise his/her right to counsel at a lineup.7
What factors can “taint” a pretrial lineup?
On the flip side, there are numerous factors that can increase the likelihood of mistaken identification in a police pretrial lineup—some of which rise to the level of police misconduct.
- Conditions that make a suspect “stand out” from the other people in the lineup, in a way that suggests the witness should select him/her;8
- A situation where the suspect is the only person in the lineup who meets the witness's description of the perpetrator;9 and
- Police making comments to the witness that suggest they should choose a particular person in the lineup.10
What if I am identified in a tainted or biased police lineup?
Experienced California criminal defense attorneys know how to help clients who have been the victim of a tainted or biased identification in a lineup.
Specifically, you and your attorney can seek to get an erroneous identification thrown out as evidence through:
- A motion filed at your preliminary hearing (which may be accompanied by a Penal Code 995 PC motion to dismiss the information);11 or
- An objection to the lineup identification at your trial.12
Additionally, in some cases it may make sense for your defense attorney to file a motion requesting a so-called “Evans lineup” to help prove your innocence.13
An Evans lineup can be helpful if you and your attorney believe that a witness would not be able to identify you at the lineup.
In order to help you better understand how police pretrial lineups work in California, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Police pretrial lineups in California can be done in several ways. These include:
The classic pretrial lineup is a “live lineup.” In a live lineup, the witness views the suspect along with several other people whose physical appearance resembles the suspect's.14
A live lineup is most likely to be used when the suspect is already in custody.15
The people who appear in a live lineup alongside the suspect are known as “fillers.” Ideally, there are at least five (5) fillers in addition to the suspect.16
In some cases police will use a photo lineup rather than a live lineup. In a photo lineup, the witness is shown pictures—usually booking or driver's license photos—of the suspect and a number of fillers (usually five).17
A photo lineup is sometimes called a “six-pack lineup,” because it usually involves six photographs.
Photo lineups are typically used when:
- The suspect is not yet under arrest (and so may not be available for a live lineup), or
- The suspect changed his/her appearance after the crime occurred, and police want to show the witness a photograph from closer to the time of the crime.18
A six-pack lineup is generally considered to be a bit less reliable than a live lineup. But a photo lineup identification is still valid evidence—even if a live lineup would have been feasible.19
A showup is different from a lineup in that there are no “fillers.” The witness is only shown the suspect and is asked to state whether or not s/he is the one who committed the crime.20
Under California law, a single-person showup is not necessarily considered unfair.21 But it is not as reliable as a lineup—and police/prosecutors are not supposed to use showups instead of lineups without a good reason for doing so.22
Example: Maggie has her purse snatched from her in a parking lot. She sees the man who committed the robbery running away and getting into a blue van.
After Maggie reports the crime, police spot a blue van near the scene. They stop the van and find Edward driving it.
Edward matches the description Molly gave of the purse-snatcher. The police arrest Edward and bring him to the police station.
Maggie is already at the station. Officers tell her that they have arrested a suspect and ask her to tell them if the person they bring in is the man who stole her purse.
As police are leading Edward down a hallway, Maggie confirms that he is the robber.
Maggie's identification of Edward is tainted and should not be used in Edward's trial. There was no compelling reason not to do a proper lineup instead—and the circumstances under which Maggie identified Edward were highly suggestive.23
Even though popular opinion—and jury members—tend to think of eyewitness identification through a lineup as a reliable form of evidence, in fact it is disturbingly unreliable.24
In part this is because human memory is just unreliable—particularly when people are trying to recall something that happened when they were under stress.25
But this is also because of how police departments conduct pretrial lineups. There are measures officers can take to make lineups more reliable—and also measures they can take that will “taint” the results, making them less reliable.
Some of the practices that police departments can—and should—engage in to make lineups more fair include:
Traditionally, lineups involved a witness viewing the suspect and fillers all at once and then choosing which one was the criminal—a so-called “simultaneous lineup.”
But police also sometimes use what is called a “sequential lineup,” in which the witness views one photograph or one person at a time. After each photograph or person, the witness says yes or no.26
Some research suggests that sequential lineups make it less likely that a witness will finger the wrong person. This is because, in a simultaneous lineup, the witness may feel like they have to pick someone—even if the real culprit is not in the lineup.27
Example: Brad and Maria both witness a fatal shooting that takes place at a nightclub.
Police suspect that Randy may have committed the murder. In fact Randy was in another city on that night.
Police show Brad a six-pack lineup: a picture of Randy and pictures of 5 men who
share Randy's general physical characteristics, all laid out next to each other.
Brad is not 100% sure that any of them is the shooter. But he picks Randy's picture because Randy most closely resembles the shooter.
Maria, on the other hand, is shown a sequential lineup: she is shown the same 6 pictures and asked to say after each one whether he is the shooter. She says no to each picture because none of them quite matches her memory of the shooter.
Sequential lineups recently have become more popular around the country. But the majority of police departments still use simultaneous lineups.28
Another helpful innovation in police lineups is the “double-blind” lineup.
This means that, not only does the witness not know who the suspect is, the officer conducting the lineup does not know either.29
Double-blind lineups are considered more fair because of the chance that an officer who does know who the suspect is might send clues about who to pick to the witness, either consciously or not.30
Example: Police have detained Anita on burglary charges.
Charles, who lives next door to the house that was invaded, claims to have seen a culprit who matched Anita's physical description running away from the scene. The police hold a pretrial lineup for Charles to identify the burglar.
Anita is lined up with five other female jail inmates who fit that physical description. Kristi and Mike, the officers conducting the lineup, know that Anita is the suspect.
Charles initially chooses another woman. When he does so, Kristi gives Mike a surprised look.
This makes Charlie uncertain about his choice. So he changes his mind and chooses Anita instead.
Kristi's glance at Mike influenced Charlie's choice. This is why double-blind lineups are considered more reliable than ones where the officer knows who the suspect is.
Instructions to the witness
Police departments are increasingly adopting standardized instructions for witnesses at pretrial lineups. These should include an instruction that the perpetrator may not actually be in the lineup.31
This is because witnesses may otherwise feel like they have to pick someone—even if the actual perpetrator is not in the lineup. And, of course, this is precisely what the case will be if the police have the wrong person!
Separating witnesses from one another
When there are multiple eyewitnesses participating in a pretrial lineup, it is important that the witnesses
- view the lineup separately from each other, and
- not be permitted to talk to one another until they have made their identifications.32
This is so that multiple witnesses will not be able to influence each other's identification of the perpetrator.
Example: Tom and Sandy, a married couple, are hit by a convertible that then speeds away. Tom sustains only minor injuries, but Sandy's leg is broken; and she has to spend several days in the hospital.
The driver of the car that hit them is guilty of felony hit and run involving death or injury. Based on descriptions of the car by Tom, Sandy, and other witnesses, the police track down and arrest a suspect.
Tom and Sandy both claim to have gotten a good look at the driver before he sped away. So police call in Tom for a pretrial lineup to see if he can identify the driver. They schedule a second lineup with Sandy for once she is released from the hospital.
But in order to make sure that Tom and Sandy do not discuss the lineup—and thus don't taint the lineup results—police require both of them to sign agreements that they will not discuss the lineup with each other until Sandy has made her identification.
Defendant's right to counsel
You have the right to have an attorney present at a live lineup (but not at a photographic lineup).33
According to San Bernardino criminal defense attorney Michael Scafiddi34:
“It may seem like there's not much use for a defense attorney at a lineup—after all, all the defendant has to do is stand there. But, in fact, your attorney's presence is incredibly important. There is no transcript made of what goes on at these lineups. Only an experienced attorney will be able to spot ways in which the lineup might be unfair. Your attorney can then use this information to challenge the tainted witness identification.”
Therefore, police conducting a live lineup should make certain that they do not set up a lineup at which the suspect's attorney can't be present.
On the flip side, there are numerous ways in which police can corrupt a pretrial lineup—by creating conditions that increase the possibility of the witness mistakenly identifying the wrong person.
Some of these are:
Making the suspect “stand out”
Police can compromise the integrity of a lineup by creating conditions that make the suspect stand out from the fillers—basically, creating conditions that suggest to the witness that the suspect is the one s/he should choose.
Conditions which could make the suspect stand out include:
- The suspect being dressed in a way that's notably different from that of the other people in the lineup (for example, maybe s/he is the only one in a prison outfit);
- A photo lineup in which the suspect's is the only photo that looks like a “mug shot”; and
- A live or photo lineup in which the suspect is displayed in different lighting from the fillers—especially if that lighting makes him/her look threatening.
If this is done in an egregious enough way, then the results of the lineup may be invalid.35
Only the suspect looks like the perpetrator
In a typical pretrial lineup, the fillers are all supposed to look somewhat like the suspect—and fit the description of the perpetrator.
But sometimes police fill the lineup with people who do not resemble the suspect (or the perpetrator). Maybe this is because they cannot find fillers who fit this description—or maybe it is because they want to increase the chances of the witness choosing the suspect.
If this is done in an extreme enough way, the defendant may be able to get the results of the lineup thrown out.36
Example: Robert is the victim of an assault with a deadly weapon, committed by a large man with dark wavy hair and a dark complexion.
The police arrest Ed for the crime. They then arrange a live lineup to see if Robert can identify the perpetrator.
Ed is put in the lineup with five other men. None of the other men is tall or has dark hair or a dark complexion. Of course Robert identifies Ed as the perpetrator.
The judge at Ed's trial throws out the lineup identification, determining that it was grossly unfair because Ed was the only person in it who resembled Robert's description of the assailant.37
Police can also taint a pretrial lineup by making comments to a witness that suggest they should choose a particular person.38
Example: Martha is a rape victim. She goes to the police station for a pretrial lineup to identify the man who raped her.
After giving Martha her instructions, the police officer conducting the lineup says to her, “Let's make sure we get that big guy locked up.”
Allen is the tallest and stockiest man in the lineup. Influenced by the officer's comment about “that big guy,” Martha selects Allen.
But her lineup identification of Allen may be invalid because of the officer's suggestive comment.
Let's say you are a criminal defendant who has been identified in a police lineup. If the procedures in that lineup were unfair, you and your attorney may be able to prevent its results from being used as evidence in your trial.
Your criminal defense attorney can ask a judge to throw out the results of a tainted lineup. S/he may do so either:
- Through a motion as part of the pretrial process, or
- Through an objection when the results are introduced at your trial.39
If your attorney chooses to challenge the lineup results through a pretrial motion, then the judge may hold a separate evidentiary hearing to consider whether the lineup was fair.40
Your motion challenging the lineup may also be accompanied by a Penal Code 995 motion to dismiss the information.41
This is because in many cases a lineup identification is the foundation of the prosecution's case. If it is thrown out, they may no longer have a case against you.
In order to convince a judge to discard the results of a pretrial lineup, you will need to convince him/her of two things:
- The procedure used for the lineup was unduly suggestive; and
- The results are therefore unreliable, in light of all of the circumstances surrounding the witness's identification.42
The first of these issues requires the court to consider whether the lineup was conducted in a manner that could taint the results—through a consideration of the kind of factors we discuss above.
The second of these issues involves consideration of the totality of the circumstances surrounding both the crime and the witness's ID of the suspect at the lineup. Questions the judge might ask in analyzing this issue include:
- How good a look did the witness get at the perpetrator when the crime was committed?
- How accurate was the witness's prior description of the perpetrator?
- How confident was the witness in his/her identification at the lineup?
- How much time elapsed between the crime and the pretrial lineup?43
It is important to note that a judge will not toss out the results of a lineup just because it was conducted under unnecessarily suggestive—unfair—circumstances. The defendant also needs to show that, in light of questions like these, the identification should be considered unreliable.44
And, on both of these issues, it is the defendant who bears the burden of proof. The police lineup is presumed to have been fair, and its results are presumed to be valid—unless the defendant can clearly demonstrate otherwise.45
Example: Ezra is the victim of a kidnapping. The kidnapper holds him hostage for five hours before letting him go. The kidnapper wears a mask at first but eventually takes it off, so Ezra gets a good look at him.
When Ezra later reports the kidnapping to police, he gives a detailed description of the kidnapper, noting that he is unusually tall.
Two days after the kidnapping, Ezra attends a police lineup to identify the kidnapper. He picks Zeke out of the lineup immediately and says he is 100% certain Zeke is the culprit.
The conditions at the lineup are somewhat suggestive. Zeke is the tallest man in the lineup; the others are all of average or slightly above-average height. Zeke is also the only man in the lineup wearing handcuffs.
However, the results of the lineup are probably still valid in light of the totality of the circumstances. Ezra had a plenty of opportunity to view his kidnapper, the lineup took place only a few days after the crime, and Ezra was completely certain that he has chosen the right man.
Many jurors—influenced by the open-shut cases they see on TV and in movies—may be inclined to think of eyewitness identification of a suspect at a lineup as a “smoking gun.”
In reality, though, these identifications are highly unreliable.
Under California law on police lineups, a defendant is permitted to call to the stand a scientific expert witness who can testify on the unreliability of eyewitness identifications—and the psychological factors that can prompt a witness to identify the wrong person.46
This kind of expert witness is often a psychologist. S/he may testify on topics such as:
- How memories are formed and the processes by which people may acquire false memories;
- Factors that can affect a person's ability to accurately recall what has happened; and
- Statistics on the unreliability of lineup eyewitness identifications in criminal cases.47
If you are unable to persuade a judge to toss out the results of an unfair pretrial lineup, you may still be able to persuade the jury not to take those results too seriously—and an expert witness can be a valuable tool to help you do that.
The defendant has the right to request a lineup in cases where the police have decided not to hold one.48
A defendant-initiated lineup is known as an “Evans lineup,” after a 1974 California Supreme Court case. In that case, the Court reasoned that it is only fair that defendants have the same rights as police—namely, to call for a lineup and use the evidence it produces to their benefit.49
An Evans lineup is most likely to make sense if you are identified by a witness in a one-person showup, or the prosecution plans to have a witness identify you in court—but you and your attorney believe that the witness would not be able to pick you out in a properly-conducted lineup.
Example: The restaurant where James works is robbed. After James reports the robbery, police arrest Vern nearby.
Police bring Vern in a patrol car to James. James takes a quick look at him from the back and says that he has the same build as the man who committed the robbery.
Vern's defense attorney requests and receives an Evans lineup.
James is unable to pick Vern out of the lineup. Vern is allowed to present this fact as part of his defense case.50
You have the right to request an Evans lineup—but you will not necessarily receive one.51 The judge will only order one if:
- Eyewitness identification is a material issue in your case, and
- There is a reasonable likelihood of mistaken identification, which a lineup might resolve.52
Also, your Evans motion will only be granted if it is made in a timely manner—that is, as soon after the arrest or arraignment as possible.53
Call us for help…
For questions about police pretrial lineups in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on what to do if you're falsely accused of a crime in Nevada, please see our page on what to do if you're falsely accused of a crime in Nevada.
1 See United States v. Wade (1967) 388 U.S. 218, 228. (“The vagaries of eyewitness identification [including identification through police lineups] are well known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. . . .'”)
2 See, e.g., “Eyewitness Misidentification”, The Innocence Project.
3 See People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.
4 United States v. Williams (7th Cir. 2008) 522 F.3d 809, 811. (“What we do learn from the studies is that the police acted prudently in telling the witnesses that the lineup may have contained no suspect at all, and that the officer conducting it may be ignorant of the suspect's identity. Those steps reduce the chance that witnesses will choose someone even though they don't remember his face, or may follow cues from the officer rather than rely entirely on their memories.”)
5 See same.
6 People v. Sequeira (1981) 126 Cal.App.3d 1, 16 (disapproved of on other grounds by Goodwin v. Superior Court (2001) 90 Cal.App.4th 215). (“In our view, the procedure employed [in a pretrial lineup] was eminently fair. The witnesses were separated, told not to talk with each other, and to designate their identifications by writing the suspect's number on a card provided them.”)
7 People v. Williams (1971) 3 Cal.3d 853, 856. (“In Wade and Gilbert, the United States Supreme Court held that a pretrial lineup was a ‘critical stage' of the prosecution at which the accused was entitled to the presence of counsel. The court held that if a witness identified a defendant in a lineup conducted in violation of the defendant's right to counsel, subsequent in-court identifications by that witness were inadmissible unless shown by clear and convincing evidence to have an origin independent of the illegal lineup. The court further held that if in-court identifications without independent origin were admitted into evidence, the error required reversal unless it was ‘harmless beyond a reasonable doubt.'”)
8 People v. Carpenter (1997) 15 Cal.4th 312, 367. (“The question is whether anything caused defendant to “stand out” from the others [in the lineup] in a way that would suggest the witness should select him.”)
9 People v. Caruso (1968) 68 Cal.2d 183, 187-88.
10 People v. Perkins (1986) 184 Cal.App.3d 583, 588. (“Suggestive comments or conduct that single out certain suspects or otherwise focus a witness's attention on a certain person in a [pretrial] lineup can cause such unfairness so as to deprive a defendant of due process of law.”)
11 See People v. James (1976) 56 Cal.App.3d 876, 884. (“Either procedure, pretrial motion or timely trial objection, would have been appropriate to secure a trial court determination of whether the procedure employed by the investigating police officer [in a police lineup] was a constitutionally impermissibly suggestive one, with misidentification as a likely result.”)
12 See same.
13 See Evans v. Superior Court (1974) 11 Cal.3d 617, 623. (“Because the People are in a position to compel a [police pretrial] lineup and utilize what favorable evidence is derived therefrom, fairness requires that the accused be given a reciprocal right to discover and utilize contrary evidence.”)
14 See, e.g., People v. Dampier (1984) 159 Cal.App.3d 709, 712-13. (“A “lineup” is a relatively formalized procedure wherein a suspect, who is generally already in custody, is placed among a group of other persons whose general *713 appearance resembles the suspect.”)
15 See same.
16 Alameda County District Attorney's Office, Lineups and Showups, Fall 2011, at 2.
17 See, e.g., People v. Brandon, endnote 3, above, at 1041. (“Ten days later, when San Diego Police Detective William M. Nemec showed Gonzales a photographic lineup with five photographs placed in a loose stack, Gonzales immediately selected Brandon's photograph, the third photograph she was shown, saying, “That's him. That's the one that got into the car with the knife.””)
18 Lineups and Showoups, endnote 16, above, at 2.
19 See People v. Lawrence (1971) 4 Cal.3d 273, 277. (“Although it appears that better police procedures could well have been employed by conducting a true lineup with counsel for defendant and the witness present (and it further appears that ample time and opportunity were available to present such a lineup) the failure to take such action is not the crucial factor in the determination of the case at bench.”)
20 Lineups and Showoups, endnote 16, above, at 2.
21 People v Bauer (1969) 1 Cal.3d 368, 374.
22 People v. Sandoval (1977) 70 Cal.App.3d 73, 85. (“Such a procedure [a single-person showup instead of a lineup] should not be used, however, without a “compelling reason” ( In re Hill, 71 Cal.2d 997, 1005 [80 Cal.Rptr. 537, 458 P.2d 449]) because of the great danger of suggestion from “a one-to-one viewing [which] requires only the assent of the witness.””)
23 Based loosely on the facts of the same.
24 See same.
25 See, e.g., Manson v. Brathwaite (1977) 432 U.S. 98, 112. (“Usually the witness [in a police pretrial lineup] must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police.”)
26 See Virginia Hughes, Why Police Lineups Will Never Be Perfect , The Atlantic, Oct. 2, 2014.
27 See same.
28 See same.
29 See United States v. Williams, endnote 4, above.
30 See same.
31 Lineups and Showoups, endnote 16, above, at 10.
See also United States v. Williams, endnote 4, above.
32 See People v. Sequeira, endnote 6, above.
33 See People v. Williams, endnote 7, above.
See also People v. St. Germain (1982), 138 Cal.App.3d 507, 520. (“Neither the United States nor the California Supreme Courts have extended the constitutional right of counsel to photographic identification procedures [photo lineups].”)
34 San Bernardino criminal defense attorney Michael Scafiddi is a former police officer and police sergeant. He knows how the police gather evidence, including through pretrial lineups—and he knows the difference between a good lineup and a bad one. He represents clients in all San Bernardino County courthouses and Riverside County courthouses.
35 People v. Carpenter, endnote 8, above.
36 People v. Caruso, endnote 9, above.
37 Based on the facts of the same.
38 People v. Perkins, endnote 10, above.
39 People v. James, endnote 11, above.
40 See, e.g., People v. Carpenter, endnote 8, at 366.
41 Penal Code 995 PC – Grounds; motion to set aside; delay in final ruling. (“(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Where it is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause [because s/he was identified in a tainted lineup]. (2) If it is an information: (A) That before the filing thereof the defendant had not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause [because s/he was identified in a tainted lineup].”)
42 People v. DeSantis (1992) 2 Cal.4th 1198, 1222. (“The issue of constitutional reliability [of a lineup identification] depends on (1) whether the identification procedure was unduly suggestive and unnecessary ( Manson v. Brathwaite [(1977)] 432 U.S. [98,] 104-107 ...; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation ( id. at pp. 109-114 ...). If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.”)
43 See same.
44 See same.
45 Same, at 1122. (“Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation.”)
46 People v. McDonald (1984) 37 Cal.3d 351, 355 (overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896). (“We address here a contention that is increasingly heard in the courts of California and our sister jurisdictions, i.e., that it may be an abuse of discretion to exclude the testimony of a psychologist who is a qualified expert witness on psychological factors shown by the evidence that may affect the accuracy of an eyewitness identification of the defendant [at a pretrial lineup]. As will appear, we hold that on a proper showing such testimony is admissible, and that it should have been admitted in the case at bar.”)
47 See same.
48 Evans v. Superior Court, endnote 13, above.
49 See same.
50 Loosely based on the facts of the same.
51 Same at 625. (“We conclude in view of the foregoing that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.”)
53 People v. Redd (2010) 48 Cal.4th 691, 723.