DOJ recommends new photo array procedures: no hints allowed.

The U.S. Department of Justice has issued new recommendations  for photo arrays – when cops show a witness the suspect’s photo along with photos of five other guys and ask which one is the perp.  The DOJ thinks it would look better if the cop showing the photos doesn’t know the right answer – the idea being that the witness should actually recognize the suspect without any noodging from the cop.

This and other recommendations for cleaning up police-arranged i.d. procedures have been around at least since the 1990’s, when the U.S. Attorney-General issued “A Guide for Law Enforcement.” This sent the NYPD and DA’s into an indignant tizzy – no criminal would ever be identified again!  Until they caught on that no matter what the cops do or don’t do, no court has ever met a photo array it didn’t like. For all the judicial handwringing about the unreliability of eyewitness identification, from the Sacco and Vanzetti trial to the DNA exonerations, nothing has changed in the way courts conduct suppression hearings.

A suppression hearing is where the cop who showed the photo array swears that everything was tickety boo, and in no way “unduly suggestive.”  To forestall any unworthy suspicions defense counsel might have, courts not only exempt the prosecution from calling the eyewitness to give her account of the procedure, but allow them to keep her identity secret until trial. Everybody takes the cop’s word for it, and that’s that.

The court then looks at the photo array, notes that the fillers are similar in age, give or take 20 or 30 years, similar in height, give or take a few feet, and similar in weight, give or take 100 pounds.  Any protest, such as that the defendant is conspicuously younger, thinner or hairier, is disposed of with the jocular observation that the police aren’t a theatrical casting agency.

But we mustn’t be cynical. Maybe the DOJ report will change everything. Here are some excerpts:


“Neither the suspect nor any photographs of the suspect (including wanted posters) should be visible in any area where the witness will be present.”


“The administrator should avoid using a photo that is several years old.”


“Fillers should be sufficiently similar so that a suspect’s photograph does not stand out –


but not so similar that a person who knew the suspect would find it difficult to distinguish him or her.”


“If the suspect’s distinctive feature cannot be readily duplicated on the filler photographs, the feature can be blacked out and a similar black mark can be placed on the filler photographs.”


“The administrator must avoid any words, sounds, expressions, actions or behaviors that suggest who the suspect is.”


“The witness’s identification of a photo, if any, and the corresponding statement of confidence should be clearly documented by video or audio recording or by immediately writing down as close to verbatim as possible the witness’s identification and statement of confidence.”

"If the witness is vague in his or her answer, such as, 'I think it's #4,' the administrator should say: 'You said [I think it's #4]. What do you mean by that?"

“If the witness is vague in his or her answer, such as, ‘I think it’s #4,’ the administrator should say: ‘You said, I think it’s #4. WHAT DO YOU MEAN BY THAT?'”

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal law, eyewitness identification, Humor, Law & Parody, Satirical cartoons and tagged . Bookmark the permalink.

2 Responses to DOJ recommends new photo array procedures: no hints allowed.

  1. ursula bentele says:

    You are of course exactly right, as usual, and the drawings are fabulous!


  2. Alex Bunin says:

    That is last year’s DOJ. Now, a single photo of the defendant is all that is needed, preferably with his or her name legibly written at the bottom. The officer must also provide a small reward to the accuser in exchange for a positive identification.


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