New Direction for Eyewitness Identification?

United States v. Shaun Brown, No. 05-4690 (December 19, 2006): Mr. Brown argued that the eyewitness identification of him by two police officers was tainted because, after they saw the alleged offender, a confederate gave them a name for the face, and they immediately consulted a mug shot of that person, confirming the information provided by the informer. Mr. Brown argued that this type of photo identification was impermissibly suggestive. In the end, the Court concluded that the officers were not like an ordinary citizen, who might be susceptible to the suggestive influence of a single photo. Instead, they were skeptical of what they had been told and consulted the photo to confirm or deny the information provided. Their interest was to verify the name given them for a face embedded in their memory. (The rationale given by the district judge was quite different: it was the typical pablum to the effect that the jury could evaluate the effect of the photo procedure.)

In working up to this conclusion, the Court presented some interesting comments on what procedure produces the most reliable results when an ordinary citizen is asked to make an eyewitness identification. Drawing heavily on social science literature (which reveals the typical pablum for the nonsense that it is), the Court lauded the "repeated sequential display." In this procedure, the witness is shown a series of photographs, one by one, and asked if the person in the photo is the offender. The witness must give an answer immediately after being shown each photo and is not allowed to make a judgment only after seeing all the photos. The witness is not told how many photographs will be shown. Ideally, the officer conducting the procedure does not know which photo contains the suspect, and in this way cannot give the witness even unintended hints. Moreover, this one-by-one display should then be repeated. Although the opinion dealt with photos, the same procedures would be equally applicable to in-person showups; that is, a series of persons, one by one, would be exhibited to the witness, who would be asked to say yes or no as to each person immediately after the presentation of that person. The opinion does not state that this type of procedure is mandated by the Constitution, although it does conclude that it better addresses the concerns raised in the Supreme Court’s decisions on eyewitness identification.