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A Staff Report by the Straight Dope Science Advisory Board
Dear Straight Dope:
I watch far too many reruns of "Law and Order," and I have to know: Where
do the police get people for lineups? One guy, of course, is the suspect, but
how do they collect the others? Pull them off the street? Central Casting? Do
the police have a pool of folks who are usually available during they day and
whom they call up as needed? —H in Los Angeles
SDSTAFF bricker replies:
To answer the simple part of your question first, yes, the police have a pool of potential lineup participants. It's called a jail. If you want a representative selection of suspicious-looking characters, you can't beat the crowd that's in the slammer already.
There's more to a proper police lineup than that, of course.
As with many legal questions, much depends on where you
are. Each of the fifty states has statutory and/or case law governing lineups,
and U.S. constitutional
guarantees also apply. Individual police departments may add their own procedures
to the mix. So there's no clear, one-size-fits-all answer to how
lineups are conducted.
That said, a few aspects of lineups are more or less constant. The lineup can't be unduly suggestive – you may recall the scene in Running Scared where the accused is paraded in as part of a lineup, each of the other participants in which is a uniformed police officer. Over the top, sure, but it highlights the prime requirement for a lineup: it must be a fair opportunity for a witness to select a perpetrator from among an assortment of individuals matching the general description the witness gave; it cannot unfairly suggest a particular choice.
The Supreme Court has spoken to the issue of lineups several times, beginning with the basic declaration that the Fifth Amendment privilege against self-incrimination doesn't apply to appearances in lineups (Schmerber v. California, 384 U.S. 757 (1966)). Other rulings: The accused has a right to counsel at a post-indictment lineup (US v. Wade, 388 U.S. 218 (1967)); the due process clause forbids government use of an impermissibly suggestive out-of-court identification procedure; and the question of suggestiveness is resolved by looking at all the circumstances of the lineup (Manson v. Brathwaite, 432 U.S. 98 (1977)).
Some factors that weigh toward a finding of undue suggestion include: (1) having several witnesses view the lineup at the same time – each may shore up the opinions of the others, creating a false sense of certainty; (2) telling the witness that a suspect is in the lineup; (3) telling the witness that the suspect has some distinguishing characteristic such as a tattoo or unusual height. Suggestive remarks by the police after the lineup is over can cause problems too – the cops can't tell a witness he’s selected the wrong person.
In an effort to consolidate the various requirements and provide a step-by-step guide for local law enforcement, in 1999 the Department of Justice published Eyewitness Evidence: A Guide for Law Enforcement. This handy document walks police through the process of setting up a solid lineup. Among its dictates:
This segues nicely back to your question, H – where do the fillers come from?
As I say, police commonly use volunteers from the pokey – they have the requisite beady eyes of the criminal class, after all, and are an easily-tapped resource. Most guys in local lockups are happy for a chance to break up the monotony, and the assignment is completely voluntary. Still, according to Telis Demos in an October 2005 Slate article, the police aren’t averse to pulling people off the street if they need a particular look. If the suspect had a mohawk, for example, the cops may not have four filler candidates with mohawks in custody. New York police will pay $10 to passersby fitting the needed description to stand in a lineup for a few minutes. Police may also use other officers, civilian office workers, or any other willing party who fills the bill.
Sometimes law enforcement officials ignore sound advice, to say nothing of common sense, when putting together a lineup. Perhaps Mike Nifong, district attorney for Durham county, North Carolina, and Durham police sergeant Mark Gottlieb were watching Running Scared instead of reading the DOJ guidelines. Defense attorneys allege that a woman accusing members of the Duke University lacrosse team of sexually assaulting her was shown photos of … the Duke University lacrosse team. There were, in other words, no “fillers” at all – every picture she was shown, according to the defense lawyer, portrayed a team member. Not surprisingly, the woman picked three members of the team as her attackers.
In light of the many dramatic failures of lineups over the years – most notably, the spate of cases in which defendants were identified in a lineup, convicted, and then exonerated by later DNA testing – many now suggest that lineup procedures be made more rigorous still. Gary L. Wells, a psychology professor at Iowa State University, is a strong proponent of blind sequential lineups, a method in which photos are used in place of live people. Photos are shown to the witness one at a time rather than all at once, and the person administering the photo lineup is unaware of who the actual suspect is. The latter condition is the “blind” part – actually double-blind, since neither the test administrator nor the witness knows the “right” answer. “The double-blind is a staple of science,” says Wells, and “it makes as much sense to do it in a lineup as it does in an experiment or drug trial.” In Wells’s classroom studies, the blind sequential lineup method reduced the number of times witnesses chose an innocent person, and did not affect number of times they chose the right one.
Other researchers haven't reached the same conclusions. An Illinois study conducted at the behest of the Governor's Commission on Capital Punishment compared 700 sequential and simultaneous (traditional) lineups and found that:
Critics of the Illinois study claim officers influenced witnesses during the simultaneous
lineups, skewing the
If sequential lineups do prove to be a better method of suspect identification, it'll take a while for some jurisdictions to catch up with the times. New York City, for example, requires a live lineup if the results are to be admissible in evidence. Whatever happens, further research coupled with stricter adherence to guidelines already in place can do nothing but good in reducing errors in witness identification.
In sum, if you want to be part of a lineup, never mind Central Casting. Your best bet is to hang out near the local precinct house looking generically criminal, and hope they invite you to be a lineup filler before they nab you for being a nuisance.
Kate Zernike, “Study Fuels a Growing Debate Over Police Lineups,” N.Y. Times, April 19, 2006
Technical Working Group for Eyewitness Evidence, Eyewitness Evidence: A Guide for Law Enforcement, National Institute of Justice, October 1999
Gary Wells, "Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads," 22 Law & Hum. Behav. 603 (1998)
Daniel Goleman, "Studies Point to Flaws in Lineup of Suspects," N.Y. Times, Jan. 17, 1995
R.C.L. Lindsay and Gary L. Wells, "Improving Eyewitness Identifications from Lineups: Simultaneous Versus Sequential Lineup Presentation," 70 J. App. Psychol. 556 (1985)
R.C.L. Lindsay, "Biased Lineups: Sequential Presentation Reduces the Problem," 76 J. App. Psychol. 796 (1991)
Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995)
Telis Demos, “Who's That Guy in the Police Lineup?” Slate Online, Tuesday, Oct. 11, 2005
Schmerber v. California, 384 U.S. 757 (1966)
U.S. v. Wade, 388 U.S. 218 (1967)
Manson v. Brathwaite, 432 U.S. 98 (1977)
Straight Dope Science Advisory Board
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Staff Reports are researched and written by members of the Straight Dope Science Advisory Board, Cecil's online auxiliary. Although the SDSAB does its best, these articles are edited by Ed Zotti, not Cecil, so accuracywise you'd better keep your fingers crossed.
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