Photo Lineup ID Admissible, Despite Violating Eyewitness Identification Procedures

By Ken Wallentine

Commonwealth v. Thomas, 2017 WL 581933 (Mass. 2017)

Thomas was a backseat passenger in a car driven by Humphrey-Frazer. Johnson was the front seat passenger. Thomas saw a person in a crowd standing in front of a house and he fired his gun toward the person. Someone returned fire and struck Humphrey-Frazer in the head, killing him.

Detectives interviewed Johnson the night of the fatal shooting. They showed her a computer screen that simultaneously displayed photos of 11 people. The detectives asked Johnson to look at the photos and tell them whether she recognized anyone. The procedure was not recorded. Johnson pointed to Thomas, who was later arrested.

Thomas asked the court to suppress the photo lineup evidence, arguing that the detectives did not follow the eyewitness identification procedures outlined in Commonwealth v. Silva-Santiago (906 N.E.2d 299 (Mass. 2009)). In Silva-Santiago, the court prescribed sequential, rather than simultaneous, presentation of lineup photos and outlined the following witness instruction for photo lineups:
• The eyewitness will be asked to view a set of photographs
• The alleged wrongdoer may or may not be in the photographs depicted in the array
• It is just as important to clear a person from suspicion as to identify a person as the alleged wrongdoer
• The persons in the photographs may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair are subject to change
• The investigation will continue regardless of whether an identification is made
• The lineup the administrator should ask the eyewitness for a statement of confidence of any identification

This was the first case asking the court to invalidate an eyewitness identification as the sanction for failure to follow the procedure prescribed in Silva-Santiago. The court allowed Johnson’s identification of Thomas from the simultaneous photo array. Despite the failure to administer the cautions outlined by the court in its prior rulings, the court held that the procedure in this case was not unduly suggestive.

The court also cited research studies published since its 2004 decision in Silva-Santiago. Those studies, the court said, cast doubt on the view that sequential presentation of photographs is superior to simultaneous presentation: “What is not clear from the studies is whether, and in what circumstances, the use of the protocol in a simultaneous photographic lineup diminishes the risk of false positive identification to a rate comparable to or less than that in a sequential lineup. We cannot determine whether a sequential display is superior to a simultaneous display and that the use of the latter is unnecessarily suggestive until we learn, at a minimum, whether the rate of false positive identification with the use of the protocol is significantly higher in simultaneous displays than in sequential displays.”

The court’s opinion concurs with the New Jersey Supreme Court, which held that, “for now, there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either [simultaneous or sequential lineup] procedure” (State v. Henderson, 27 A.3d 872 (N.J. 2011)). More recently, the National Academy of Sciences observed that “the relative superiority of competing [simultaneous versus sequential] identification procedures … is unresolved.”

Until the science is settled, Lexipol’s best practice policy prefers sequential over simultaneous to avoid arguments such as the ones made in this case. Lexipol also recommends blind administration; the person presenting the lineup should not be involved in the investigation of the case or know the identity of the suspect. In addition, the policy prescribes recording the eyewitness identification procedure and administering important instructions to the witness prior to beginning the procedure. These cautionary instructions include:
• An instruction to the witness that it is as important to exclude innocent persons as it is to identify a perpetrator.
• An instruction to the witness that the perpetrator may or may not be among those presented and that the witness is not obligated to make an identification.
• If the identification process is a photographic or live lineup, an instruction to the witness that the perpetrator may not appear exactly as he/she did on the date of the incident.
• An instruction to the witness that the investigation will continue regardless of whether an identification is made by the witness.
• A signature line where the witness acknowledges that he/she understands the identification procedures and instructions.
• A statement from the witness in the witness’s own words describing how certain he/she is of the identification or non-identification. This statement should be taken at the time of the identification procedure.

Although the court upheld the admission of the eyewitness identification in this case, it reminded officers of its authority to govern admission of evidence and reiterated that courts assessing the weight of the eyewitness identification evidence will still scrutinize the steps taken by officers to prevent a suggestive identification procedure.

Related webinar: Eyewitness Identification: Best Practices and Strategies to Prevent Wrongful Convictions

Lexipol Law Enforcement

CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

  • REQUEST MORE INFORMATION

    (844) 312-9500

Director Daniel Keen
Northampton (PA) Department of Corrections

“It came down to three main factors for us: safety, time and efficiency. This is a way to protect  the staff, public and inmates in the best interest of all.”

Major Jeff Fox
Vigo County (IN) Sheriff's Office

“Lexipol’s Implementation Services program was key to getting our manuals off the shelf. If it weren’t for that, we wouldn’t be implemented today. Departments should recognize their limitations and realize that they likely don’t have the resources to do it on their own. Implementation Services is key to getting it done.”

Chief Deputy Ray Saylo
Carson City (NV) Sheriff's Office

"It’s a huge priority of this administration to teach policy to our sergeants, and Lexipol’s Daily Training Bulletins help us do that. We are constantly drilling into them that policy will protect them as an individual officer. If they ensure that their people are following policy, even if they’re sued, they will be OK.”

Sgt. Bryan Ward
Cumberland County (PA) Sheriff's Office

"Calling Lexipol an insurance policy doesn’t do it justice, because it doesn’t capture the enormous power that partnering with Lexipol provides.”

Chief Deputy Klint Anderson
Weber County (UT) Sheriff's Office

“We spent a considerable amount of money and effort trying to develop and maintain comprehensive and legally based policies and procedures. Lexipol has relieved us of that burden and provided us with a policy system that we have great confidence in and that we can tailor to suit our particular goals and community standards.”

Sheriff Blaine Breshears
Morgan County (UT) Sheriff's Office

“We had a use of force lawsuit, and as soon as the attorneys discovered that we have Lexipol, they said, ‘We won’t have an issue there.’ Our policies were never in question.”

Lt. Craig Capps
White County (TN) Sheriff's Office

"I would recommend Lexipol to any law enforcement agency, whether three-person or 2,000-person—it makes no difference. The program works.”

Chief John Defore
Hiawatha, KS

“By offering 365 daily training bulletins to my officers, I am saving far more than the cost of the software every year. In fact, I was able to show my commissioners a cost savings by utilizing Lexipol for our policy and policy training needs.”

Captain Jeff Schneider
Yakima (WA) Police Department

“KMS tracks and logs when people acknowledge and accept updates, which is very important, and it lets us track who isn’t getting the updates so we can give them the appropriate attention.”

Chief David Maine
The Village of Hunting Valley (OH) Police Department

“What we had before Lexipol had been around for years. It was like every other policy manual I had seen: It didn’t get the updates it needed. The Lexipol manual is a living, breathing document.”

Chief Deputy Lauren Osborne
Surry County (NC) Sheriff’s Office

“If there’s a change as a result of case law, or a procedure that needs to change, Lexipol does the legwork, sends it to us, we approve it and send it out to our people for acknowledgement—and it’s all documented.”

Sheriff Gerald Antinoro
Storey County (NV) Sheriff’s Office

“Lexipol is one of the best products I have seen in my 30+ years in law enforcement.”

Deputy Chief John McGinty
Simi Valley (CA) Police Department

“You get sued for your policies or you get sued for your actions, or both. You can only do so much about actions. But having Lexipol gives me confidence that if we draw a lawsuit, our policies won’t come under attack.”

Chief Kelly Stillman
Rocky River (OH) Police Department

“I can’t say enough about the positives from a chief’s perspective. I don’t know why everyone isn’t with Lexipol.”

Chief Jeff Wilson
Orofino (ID) Police Department

“The Lexipol Policy Manual is easy to use, it’s convenient and you have peace of mind knowing that you have a thorough manual that is going to stand up to any challenge the agency may face.”

Chief Ralph Maher
Oak Creek (CO) Police Department

“With Lexipol, I know our policy manual is going to be up to date. I can turn my back on it today and tomorrow there will be any needed updates waiting for me. That allows me to focus on some of the other things I have to do as a chief.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Commander Leslie Burns
Mercer Island (WA) Police Department

“Lexipol provides a huge advantage for agencies pursuing accreditation. The tools take about 60% of the difficulty out of the accreditation process. If you want to be accredited, this is the way to do it.”

Deputy Chief Robin Passwater
Kankakee (IL) Police Department

“If you don’t have Lexipol, even with a full-time person dedicated to policy, there’s almost no way you can keep updated on all the laws and also have the training component. It’s an excellent system.”

Assistant Chief Bill Holmer
Glen Ellyn (IL) Police Department

“It’s a no-brainer for me. Someone is watching for changes to laws for me, and then tweaking the content based on those changes or updates in best practices.”

Lt. Ed Alvarez
Bay Area Rapid Transit (BART) (CA) Police Department

“I like the mobile app because it tells me no matter where I am when I have updates to complete or when people take the DTBs. No matter where I am, I have access. The officers can get real-time updates. Everything is at their fingertips, any time.”

Chief Greg Knott
Basalt (CO) Police Department

“Lexipol gives you peace of mind because the policies that you’re implementing have been reviewed by professionals in the field and by attorneys—not just your agency’s legal counsel.”

Chief Corry Blount
Bartonville (TX) Police Department

“I feel comfortable that when we issue a policy, it covers what it needs to cover. It’s the most comprehensive policy content I’ve used in my career.”

Lt. Victor Pecoraro
Auburn (CA) Police Department

“The updates are super easy because you can pop them open, see the redline versions and be able to edit it on the fly. Once I learned I could do that, I was excited.”

Chief Joseph Morris
Arapahoe Community College (CO) Police Department

“Officers are not infallible. We have limited memories like everyone else. Working under stress presents more challenges. There are times we need to access policies in the field so we are comfortable in our decision making. The mobile application has been great for this!”

Captain Jesus Ochoa
Coronado (CA) Police Department

“Knowing that Lexipol is keeping our policies current means that there isn’t something else for us to worry about. We can focus on our jobs. That definitely gives us peace of mind.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Jim Franklin, Executive Director
Minnesota Sheriffs' Association, MN

"Lexipol is, indeed, ahead of the curve with their unique risk management solutions in law enforcement. The Minnesota Sheriffs' Association has been eagerly anticipating the release of the Lexipol Custody Manual. Lexipol meets the needs of law enforcement and custodial agencies by recognizing the emerging challenges facing our agencies, and providing comprehensive tools and resources to reduce liability and risk in a professional and highly efficient manner. The Minnesota Sheriffs' Association is proud of its continued partnership with Lexipol."

Close [X]
Close [X]
Close [X]
Close [X]