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: