Lineups and Showups: What They Are and Why They’re Challenged
Lineups and Showups Use Eyewitness Testimony to Identify Suspects
Watch most any TV detective show and sooner or later, you’re going to see the police (and sometimes prosecutors, too) identify their Bad Guy with a lineup or showup.
These are popular ways for TV police to have eyewitnesses point the finger at the bad guy. Probably saves a lot of time in the plot.
And it’s true, these are legitimate tools used by federal and state law enforcement.
What’s not true? They are based upon eyewitness recollections. And eyewitness testimony is anything but 100% accurate. (This isn’t how they’re portrayed on television.)
Defense lawyers have to fight against their use all the time. The defense attorney may also move the court to refuse to allow not only the out-of-court identification of the defendant, but also any testimony that relates to the lineup or showup. It’s all tainted and unconstitutional.
What is a Lineup?
Lineups happen after the police have taken someone into custody. They happen in both state and federal proceedings. Lineups have been deemed acceptable police procedures for over 50 years now. See, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
An example of a lineup is described in the Wade case. There, an FBI agent set up a lineup. Two bank employees watched Mr. Wade, along with “five or six” other prisoners, walk in a line in front of the employees. Those in the lineup wore strips of tape, as the bank robber had done. Each was asked to say things like the instructions given by the bank robber, e.g., “put the money in the bag.” Wade was identified by the two bank employees as the man who robbed the bank. (Of course, this lineup was challenged by Wade’s attorney – that’s how the case ended up before the Supreme Court.)
What is a Showup?
In a showup, there’s no multiple choice for the witness. The police don’t provide a handful of people for the eyewitness’s selection.
In a showup, the eyewitness is shown a single individual and asked, “is this the guy?” One person. Provided by police. These can even happen at a crime scene!
Needless to say, a showup is controversial and distrusted. There’s lots to challenge when a showup is used. How can these be fair? One basic point here:
“A show-up is inherently suggestive because the witness is likely to be influenced by the fact that the police appear to believe the person brought in is guilty, since presumably the police would not bring in someone that they did not suspect had committed the crime.” CICCHINI, MICHAEL D., and JOSEPH G. EASTON. “REFORMING THE LAW ON SHOW-UP IDENTIFICATIONS.” The Journal of Criminal Law and Criminology (1973-) 100, no. 2 (2010): 381-413.
Federal Grand Juries and Lineups
In a federal case, the grand jury has the power to order a lineup. Here, the suspect is forced to be in a lineup as part of the grand jury’s role of investigating whether or not a crime has been committed. These lineups aren’t done in front of the grand jury, but the results are provided to the grand jury. See, U.S. Attorney Criminal Resource Manual 244; United States v. Larkin, 978 F.2d 964, 968 (7th Cir. 1992); In re Melvin, 550 F.2d 674 (1st Cir. 1977).
Challenging Lineups and Showups
There are several ways that a criminal defense lawyer will work to block the use of eyewitness testimony from a lineup or showup.
It’s a two-fold concern:
- first, lineups and showups are suspect by their nature; and
- second, eyewitnesses are notorious for being wrong and mistaken in their recollections of what they saw versus what really happened.
Right to Have Your Lawyer Present at a Lineup or Showup
You have a right to have a lawyer present if you are asked to participate in any lineup or showup, regardless of whether it’s being requested by state or federal authorities. That’s a guarantee provided by the Sixth Amendment.
If you are denied your right to counsel, then it’s a big deal. Not only will your lineup or showup identification be held inadmissible into evidence, but the prosecution cannot use that eyewitness testimony to finger-point the accused.
There’s an exception here: the eyewitness’ identification of the defendant can be used at trial if the prosecutor can prove to the judge that it’s based upon observations by that eyewitness of the defendant outside of the lineup identification. For more discussion on how the prosecution can try to do this, read the U.S. Attorney’s Manual Section 239, Power to Order Lineup- Right to Counsel.
Due Process Protections
The federal constitution demands due process in both state and federal criminal cases. When there has been an eyewitness identification of a suspect, then due process concerns must be addressed.
Defense lawyers will fight the admission of eyewitness identification evidence as a violation of due process. This can easily happen in a situation where the witness may have been lead, or suggested, by the police to identify the accused as the person they saw.
The prosecutor will argue that the importance of the eyewitness testimony outweighs any due process concerns, and the judge will make the ruling. (Which may then be the subject of appeal.) See, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 565 U.S. 1, 181 L. Ed. 2d 694 (2012).
Eyewitness Testimony Is Not Trustworthy
Not only are the procedures of lineups and showups ripe for suggesting outcomes to witnesses but the mere use of an eyewitness is dangerous.
We’ve warned again and again about how eyewitness testimony can result in a wrongful conviction.
See, “Eyewitness Testimony and Prosecutorial Misconduct Spotlighted Again as Texas Executed Another Innocent Man: the Wrongful Prosecution of Carlos DeLuna,” and “Defense Lessons Of The Dallas Crime Lab And The Michael Phillips Exoneration.”
Eyewitnesses may truly believe they are telling the truth. However, mistakes happen all the time in eyewitness recollections of what happened at the time that the crime occurred, or they witnessed the events.
Many DNA exonerations by the Innocence Project have resulted from cases where innocent men and women were convicted based upon eyewitness fingerpointing that “he did it.” In fact, it’s estimated that 75% of these exonerations were the result of misidentifications by eyewitnesses in lineups.
For more on the reasons we shouldn’t trust eyewitness testimony, read the research article, “Determining Eyewitness Accuracy Using Police Lineups and False Memory,”
Want to Know More About Lineup or Showup in Dallas, Fort Worth, or North Texas?
Here in Texas, eyewitness testimony continues to be used by both state and federal prosecutors. Lineups and showups are popular with police and federal law enforcement. If the identification is not challenged under the law, it can be admitted against the accused.
Having an experienced criminal defense lawyer present during a lineup is vital here in Texas. Even more so, it’s important to have a defense attorney ready to fight during pretrial with things like motions to suppress the eyewitness evidence. It’s not to be trusted.
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