To improve the reliability of eyewitness identifications, California recently instituted new rules for how police lineups must be conducted. Defendants can still challenge biased lineups and identifications through pretrial motions or at trial. Defendants may also request their own lineups (called “Evans lineups”) that can aid in their defense if a witness fails to identify them.
Though witness identifications at lineups are often unreliable,1 and cases of mistaken eyewitness identification are all too common.2
Efforts to improve lineups
A recent California law attempts to make pretrial lineups more accurate and to reduce police misconduct by instituting several rules the officers must follow.3 Some of these include:
- Making the lineup “double-blind”—meaning that the officer does not know which of the participants is the suspect;4
- Separating multiple witnesses from one another, so that they will not know who the others have identified as the suspect;5 and
- Having the eyewitness provide a description of the suspect to the officer prior to the lineup.
Excluding lineup IDs as evidence
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);6 or
- An objection to the lineup identification at your trial.7
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.8 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 Los Angeles criminal defense attorneys will address the following:
- 1. Types of pretrial lineups
- 2. Requirements for pretrial lineups
- 3. How to challenge a tainted pretrial lineup
- 4. Evans lineups
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.9
A live lineup is most likely to be used when the suspect is already in custody.10
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.11
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).12
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 their appearance after the crime occurred, and police want to show the witness a photograph from closer to the time of the crime.13
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.14
A showup differs from a lineup in that there are no “fillers.” The witness is only shown the suspect and is asked to state whether or not they are the one who committed the crime.15
Under California law, a single-person showup is not necessarily considered unfair.16 Though 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.17
Example: Maggie sees the man who robbed her purse running away and getting into a blue van. After Maggie reports the crime, police stop a blue van near the scene and find Edward driving it.
As police are leading Edward down a hallway at the police station, Maggie confirms that he is the robber. However there was no compelling reason not to do a proper lineup instead—and the circumstances under which Maggie identified Edward were highly suggestive.18
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.19
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.20
Also, this is 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.
Penal Code 859.7 PC
Just recently, a California law was enacted requiring police to take several precautions when conducting lineups to make them more reliable:
- The eyewitness must describe the suspect prior to conducting the lineup, and as close in time to the incident as possible.
- The investigator conducting the lineup may not know who the suspect is in the lineup (“double-blind lineups”).
- Only one suspected perpetrator shall be included in any identification procedure.
- All eyewitnesses shall be separated when viewing an identification procedure.
- Nothing shall be said to the eyewitness that might influence the eyewitness’ identification of the suspect.
- A lineup should have fillers who generally fit the eyewitness’ description of the suspect.
- In a photo lineup, writings or information concerning any previous arrest of the suspect shall not be visible to the eyewitness.
- When possible, an electronic recording shall be made that includes both audio and visual representations of the identification procedures.
- An eyewitness shall be instructed of the following, prior to any identification procedure:
- The suspect may or may not be among the persons in the identification procedure;
- The eyewitness should not feel compelled to make an identification; and
- An identification or failure to make an identification will not end the investigation.
- If the eyewitness identifies a person they believe to be the suspect, all of the following shall apply:
- The investigator shall immediately inquire as to the eyewitness’ confidence level in the accuracy of the identification and record in writing, verbatim, what the eyewitness says;
- Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness’ statement of confidence level and documenting the exact words of the eyewitness;
- The officer shall not validate or invalidate the eyewitness’ identification.21
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.”
However, police also sometimes use a “sequential lineup,” in which the witness views one photograph or person at a time. After each photograph or person, the witness says yes or no.22
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.23
Sequential lineups recently have become more popular around the country. Though the majority of police departments still use simultaneous lineups.24
Defendant’s right to counsel
You have the right to have an attorney present at a live lineup (but not at a photographic lineup).25
According to San Bernardino criminal defense attorney Michael Scafiddi26:
“It may seem like there is 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 cannot be present.
Let us say you are a criminal defendant who has been identified in a police lineup. Suppose the procedures in that lineup were unfair. In that case, Shouse Law Group knows from experience fighting to invalidate lineups that we may be able to prevent the 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. They may do so either:
- Through a pretrial motion to suppress (Penal Code 1538.5 PC) to exclude the lineup ID as evidence, or
- Through an objection when the results are introduced at your trial.27
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.28
Your motion challenging the lineup may also be accompanied by a Penal Code 995 motion to dismiss the information.29 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 them 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.30
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 considering the totality of the circumstances surrounding 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 their identification at the lineup?
- How much time elapsed between the crime and the pretrial lineup?31
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. The defendant also needs to show that the identification should be considered unreliable in light of questions like these.32
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.33
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.34
This kind of expert witness is often a psychologist. They 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.35
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.36
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.37
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.38
Right to request, not to receive
You have the right to request an Evans lineup—but you will not necessarily receive one.39 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.40
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.41
- 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. . . .’”)
- See, for example, “Eyewitness Misidentification”, The Innocence Project.
- California Senate Bill 932 (2018).
- 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.”)
- 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.”)
- 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.”)
- See same.
- 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.”)
- See, for example, 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.”)
- See same.
- Alameda County District Attorney’s Office, Lineups and Showups, Fall 2011, at 2.
- See, for example, People v. Brandon (Court of Appeal of California, Fourth District, Division One, 1995) 32 Cal.App.4th 1033, 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.””)
- Lineups and Showups, endnote 11, above, at 2.
- 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.”)
- Lineups and Showups, endnote 16, above, at 2.
- People v Bauer (1969) 1 Cal.3d 368, 374.
- 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.””)
- Based loosely on the facts of the same.
- See, for example, 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.”)
- California Senate Bill 923: Section 859.7 is added to the Penal Code, to read: 859.7. (a) All law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses. The regulations shall be developed to ensure reliable and accurate suspect identifications. In order to ensure reliability and accuracy, the regulations shall comply with, at a minimum, the following requirements:
(1) Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall provide the description of the perpetrator of the offense.
(2) The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.
(3) The investigator shall state in writing the reason that the presentation of the lineup was not conducted using blind administration, if applicable.
(4) An eyewitness shall be instructed of the following, prior to any identification procedure:
(A) The perpetrator may or may not be among the persons in the identification procedure.
(B) The eyewitness should not feel compelled to make an identification.
(C) An identification or failure to make an identification will not end the investigation.
(5) An identification procedure shall be composed so that the fillers generally fit the eyewitness’ description of the perpetrator. In the case of a photo lineup, the photograph of the person suspected as the perpetrator should, if practicable, resemble his or her appearance at the time of the offense and not unduly stand out.
(6) In a photo lineup, writings or information concerning any previous arrest of the person suspected as the perpetrator shall not be visible to the eyewitness.
(7) Only one suspected perpetrator shall be included in any identification procedure.
(8) All eyewitnesses shall be separated when viewing an identification procedure.
(9) Nothing shall be said to the eyewitness that might influence the eyewitness’ identification of the person suspected as the perpetrator.
(10) If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
(A) The investigator shall immediately inquire as to the eyewitness’ confidence level in the accuracy of the identification and record in writing, verbatim, what the eyewitness says.
(B) Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness’ statement of confidence level and documenting the exact words of the eyewitness.
(C) The officer shall not validate or invalidate the eyewitness’ identification.
(11) An electronic recording shall be made that includes both audio and visual representations of the identification procedures. Whether it is feasible to make a recording with both audio and visual representations shall be determined on a case-by-case basis. When it is not feasible to make a recording with both audio and visual representations, audio recording may be used. When audio recording without video recording is used, the investigator shall state in writing the reason that video recording was not feasible.
(b) Nothing in this section is intended to affect policies for field show up procedures.
(c) For purposes of this section, the following terms have the following meanings:
(1) “Blind administration” means the administrator of an eyewitness identification procedure does not know the identity of the suspect.
(2) “Blinded administration” means the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure through the use of any of the following:
(A) An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed.
(B) The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed.
(C) Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing where the suspect or his or her photo, as applicable, has been placed or positioned in the identification procedure.
(3) “Eyewitness” means a person whose identification of another person may be relevant in a criminal investigation.
(4) “Field show up” means a procedure in which a suspect is detained shortly after the commission of a crime and who, based on his or her appearance, his or her distance from the crime scene, or other circumstantial evidence, is suspected of having just committed a crime. In these situations, the victim or an eyewitness is brought to the scene of the detention and is asked if the detainee was the perpetrator.
(5) “Filler” means either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.
(6) “Identification procedure” means either a photo lineup or a live lineup.
(7) “Investigator” means the person conducting the identification procedure.
(8) “Live lineup” means a procedure in which a group of persons, including the person suspected as the perpetrator of an offense and other persons not suspected of the offense, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
(9) “Photo lineup” means a procedure in which an array of photographs, including a photograph of the person suspected as the perpetrator of an offense and additional photographs of other persons not suspected of the offense, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
(d) Nothing in this section is intended to preclude the admissibility of any relevant evidence or to affect the standards governing the admissibility of evidence under the United States Constitution.
(e) This section shall become operative on January 1, 2020.
- See Virginia Hughes, Why Police Lineups Will Never Be Perfect, The Atlantic.
- See same.
- See same.
- Moore v. Illinois (1977) 434 U.S. 220; Kirby v. Illinois (1972) 406 U.S. 682, 689.
- 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.
- People v. James, endnote 6, above.
- See, for example, People v. Carpenter (1997) 15 Cal.4th 312, at 366.
- 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].”)
- 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.”)
- See same.
- See same.
- Same, at 1122. (“Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation.”)
- 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.”)
- See same.
- Evans v. Superior Court, endnote 8, above.
- See same.
- Loosely based on the facts of the same.
- 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.”)
- People v. Redd (2010) 48 Cal.4th 691, 723.