Effective Date: Sept. 15, 2010
Amended: Feb. 9, 2015
2.400 Eyewitness Identification
2.400.02 HB1200 Public Safety Eyewitness Identification (2014)
HB1200 requires each law enforcement agency in the State to (1) adopt the Maryland Police Standards and Training Commission (MPSTC) Eyewitness Identification Model Policy or adopt and implement a written policy relating to "identification procedures" that complies with specified requirements and (2) file a copy of the written policy with the Department of State Police (DSP). DSP must compile the written policies by Feb. 16, 2016. As a result, the University of Baltimore Police (UBPD) adopted the PTC policy whereby the agency will adhere to professional principles as they relate to police conduct surrounding the collection / development of eyewitness identification/evidence, and to safeguard the constitutional rights of all persons.
2.400.04 General Information
A. The identification of a suspect by an eyewitness can be an important component of a criminal investigation, but can be equally significant in clearing an innocent suspect. Many people who have been convicted of serious crimes, only to later be exonerated by scientific evidence, were originally convicted based in large part on mistaken identification by a witness. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in approximately 75 percent of convictions overturned through DNA testing. The University of Baltimore Police Department recognizes that it is as much the responsibility of the police to protect the innocent from conviction as it is to assist in the conviction of the guilty.
B. The identification of criminal offenders must be approached with extreme caution as the court may exclude eyewitness evidence if it determines that police methods were unnecessarily suggestive.
It is the policy of the University of Baltimore Police Department that:
A. Eyewitnesses will be given specific instructions prior to being shown a suspect;
B. Photo arrays and line-ups will be conducted using sequential rather than simultaneous presentation; and
C. Photo arrays, line-ups and voice identifications will be conducted using blind administration.
A. Show-up: The live presentation of one suspect to an eyewitness shortly after the commission of a crime.
B. Field View: The exposure of an eyewitness to a group of people in a public place on the theory that the subject may be among the group. A field view differs from a show-up in that it may be conducted well after the commission of the crime, and may be conducted with or without a suspect in the group.
C. Photo Array: The showing of photographs of several individuals to an eyewitness for the purpose of obtaining an identification.
D. Line-up: The live presentation of a number of people to an eyewitness for the purpose of obtaining an identification. A line-up differs from a field view in that it is conducted in a controlled setting, such as a police station, a known suspect is in the mix, and the participants are aware that an identification procedure is being conducted.
E. Voice Line-up: A procedure whereby a witness is permitted to hear the voices of several people for the purpose of obtaining an identification of a suspect's voice.
A. Right to Counsel During Identification Procedure:
- Once a suspect has been arraigned or indicted, his/her right to have counsel present at an in-person identification procedure attaches. No right to the presence of counsel exists simply because a complaint has been filed, even if an arrest warrant has issued.
- No right to counsel attaches for non-corporeal identification procedures, such as those involving photographs or composite drawings, whether conducted before or after the initiation of adversarial criminal proceedings.
B. General Considerations:
- Due process requires that identifications be conducted in a fair, objective, and non-suggestive manner. Due process is violated when identification procedures conducted by the police are unnecessarily suggestive and conducive to irreparable mistaken identification.
- Upon response to the scene of a crime, an officer should make an effort to prevent eyewitnesses from comparing their recollections of the offender or the incident. Officers may accomplish this by promptly separating the witnesses and interviewing each out of the earshot of the others. Witnesses should not participate in identification procedures together. For example, witnesses should not be transported together to view a suspect during a show-up.
- Officers should use caution when interviewing eyewitnesses. Specifically, they should avoid whenever possible the use of leading questions.
- Prior to asking an eyewitness to identify a suspect, police officers should obtain a detailed description of the offender.
- If practicable, the officer should record the procedure and the witness’ statement of certainty. If not, the officer should write down the witness’ exact words and incorporate them into his/her report. The witness should be asked to initial and date the front of the photograph selected.
- A report of every show-up, photo array, line-up or voice identification procedure, whether an identification is made or not, shall be submitted. The report shall include a summary of the procedure, the persons who were present for it, instructions given to the witness by the officer (this should be accomplished by submitting the appropriate witness instruction form), any statement or reaction by the witness, and any comments made by the witness regarding the identification procedure.
2.400.12 Witness Instructions
A. An officer conducting an identification procedure must read the witness a set of instructions from a departmental form (show-up card, or photo array or line-up instruction form). Those instructions should include the following:
1. You are being asked to view (some people or a set of photographs).
a. You will be viewing the photographs one at a time in a random order.
b. Please look at all of them. I am required to show you the entire series.
c. Please make a decision about each photograph before moving to the next one.
- You are being asked to view (some people or a set of photographs).
- The person who you saw may or may not be (one of the people or in the set of photographs) you are about to view.
- You should remember that it is just as important to clear innocent persons from suspicion as to identify the guilty.
- The officer (showing the photographs or administering the line-up) does not know whether any of the people in the array are the person you saw. (Not for use with show-ups).
- The individuals (in the photographs) you view may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. (Not for use with show-ups.)
- Regardless of whether or not you identify someone, the police department will continue to investigate the incident.
- If you select someone, the procedure requires us to ask you to state, in your own words, how certain you are.
- If you do select someone, please do not ask us questions about the person you have selected, as no information can be shared with you at this stage of the investigation.
- Regardless of whether you select someone, please do not discuss the procedure with any other witnesses in the case.
- Do you have any questions about the procedure before we begin?
A. Show-up identification procedures should only be used soon after a crime has been committed, typically within two hours, or under exigent circumstances, such as the near death of the only available witness. Show-ups should be conducted live whenever possible and not photographically. Officers should not attempt to obtain identifications using driver’s license photos on their cruiser MDTs, unless a dire emergency exists.
B. When a show-up is arranged in an emergency situation, where either a witness or a victim is in imminent danger of death or in critical condition in a hospital, and the circumstances are such that an immediate confrontation is imperative, the emergency identification procedure shall be conducted in a non-suggestive manner.
C. Every show-up must be as fair and non-suggestive as possible. Specifically, if the suspect is handcuffed, he/she should be positioned so that the handcuffs are not visible to the witness. The suspect should not be viewed when he/she is inside a police vehicle, in a cell, or in jail clothing.
D. Detaining a person who fits the description of a suspect in order to arrange a show-up is lawful where the officer has reasonable suspicion that the suspect has committed a crime, even if probable cause to arrest has not yet developed.
E. If the witness fails to make a positive identification and sufficient other evidence has not developed to provide probable cause to make an arrest, the suspect must be permitted to leave. His/her identity should be recorded and included in the officer's report.
F. If a suspect is stopped within a short time after the commission of the crime, he/she may be taken to a location where he/she can be viewed by a witness for possible identification; or, he/she may be detained at the site of the stop and the witness taken there to view him/her. Transporting the witness to the site of the stop is preferred.
G. Suspects should not be brought into a crime scene as contamination may result. For the same reason, clothing articles found at the crime scene should not be placed on or in contact with a suspect. A suspect should not be brought back to the home of a victim or witness unless that was the scene of the crime.
H. Police officers must not do or say anything that might convey to the witnesses that they have evidence of the suspect’s guilt. Officers should turn down their radios so that the witness they are transporting does not pick up information about the stop of the suspect.
I. The suspect should be viewed by one witness at a time and out of the presence or hearing of other witnesses. Witnesses who have viewed the suspect should not be permitted to communicate with those who have not.
J. Once one witness has positively identified the subject during a show-up, further identifications should be attempted by means of a photo array or line-up.
K. Officers may transport victims or witnesses in police vehicles to cruise the area where a crime has just occurred in order for them to attempt to point out the perpetrator. While checking the area, officers must be careful not to make any statements or comments to the witnesses which could be considered suggestive.
L. Officers should make written notes of any identifications and any statements made by witnesses at the time of confrontation with the suspect. Once a witness has indicated his/her opinion regarding the identity of the subject, the officer should ask the witness how certain he/she is of the identification. Officers should ask the witness not to use a numerical scale, but rather to indicate certainty in his/her own words. All statements by the witnesses should be incorporated into the officers' report.
2.400.16 Preparing a Photo Array
A. Photo arrays should be shown to witnesses as soon as possible after the commission of a crime.
B. Include one suspect and a minimum of five fillers (non-suspects) in each array. Mark the back of each photo with sequential numerals. Use a separate array for each suspect.
C. Use photographs of the same size and basic composition. Do not include more than one photograph of the same person.
D. Use a photo of the suspect that closely depicts his/her appearance at the time of the incident.
E. Select fillers who generally fit the witness' description of the offender. Avoid fillers who so closely match the suspect that a person familiar with the suspect would have difficulty distinguishing the filler.
F. Ensure that photos bear no markings indicating previous arrests.
G. Without altering the photo of the suspect, create a consistent appearance between the suspect and fillers with respect to any unique or unusual feature such as facial scars or severe injuries by adding or covering the feature.
H. Once the array has been assembled, examine it to ensure that nothing about the suspect’s photo makes him/her stand out.
I. In cases with multiple witnesses, changing the order of photos from one witness to the next.
J. When showing a witness an array containing a new suspect, avoid using fillers from a previous array.
2.400.18 Showing a Photo
A. The procedure must be conducted in a manner that promotes reliability, fairness and objectivity.
B. If practicable, the officer should record the procedure.
C. Allow each witness to view the photographs independently, out of the presence and hearing of the other witnesses.
D. Never make suggestive statements that may influence the judgment or perception of the witness.
E. A second officer who is unaware of which photograph depicts the suspect should actually show the photographs. This technique, called double-blind administration, is intended to ensure that the witness does not interpret a gesture or facial expression by the officer as an indication as to the identity of the suspect. The technique also allows the prosecution to demonstrate to the judge or jury that it was impossible for the officer showing the photographs to indicate to the witness, intentionally or unintentionally, which photograph he/she should select.
F. If a second officer is not available, the officer showing the array must employ a so-called "blinded" technique so that he/she does not know when the witness is viewing a photograph of the suspect.
G. The investigating officer or the second officer (administrator) should carefully instruct the witness by reading from a departmental Photo Array Instruction Form, and the witness should be asked to sign the form indicating that he/she understands the instructions. The investigating officer and the administrator should also sign and date the form.
H. For the reasons above, officers should explain to the witness that the officer showing the array does not know the identity of the people in the photographs. The investigating officer should leave the room while the array is being shown by the administrator.
I. The officer should show the photographs to a witness one at a time. When the witness signals for the next photograph, the officer should move the first photograph so that it is out of sight.
J. The procedure should be repeated until the witness has viewed each photograph. If the witness identifies a subject before all the photographs have been viewed, the officer should remind the witness that he/she is required to show the rest of the photographs.
K. If the witness fails to make an identification, but asks to view the array a second time, the officer administering the identification should ask the witness if he/she was able to make an identification from the original viewing. If the witness is unable to make an identification, but feels that it would be helpful to repeat the procedure, then it is permissible to show the entire array a second time. An array may not be shown more than twice.
L. If the witness identifies the suspect, the officer should ask the witness how certain he/she is of the identification. Officers should ask the witness not to use a numerical scale, but rather his/her own words.
M. The photo array should be preserved as evidence in the same configuration as when the identification was made.
N. If more than one witness is to view an array, a separate unmarked array shall be used for each witness.
A. Line-ups shall be conducted under the direction of a detective supervisor, and, when feasible, after consultation with the State’s Attorney's Office.
B. If practicable, the officer should record the procedure.
C. A suspect cannot be detained and compelled to participate in a line-up without probable cause to arrest. If a suspect refuses to participate in a line-up, the State's Attorney's Office may be asked to apply for a court order to compel the suspect to cooperate.
D. Before any suspect who has been arraigned or indicted is shown to eyewitnesses in a line-up or other live identification procedure, he/she must be informed of his/her right to have an attorney present at the line-up. Unless a valid waiver is voluntarily and knowingly made, in writing if possible, no such identification may proceed without the presence of the suspect's attorney.
E. Select a group of at least five fillers who fit the description of the subject as provided by the witness(es). Because line-ups will be administered by an officer who does not know the identity of the suspect, the fillers selected should not be known to the officer administering the line-up. In selecting line-up fillers, abide by the guidelines for photo array fillers as described above.
F. All persons in the line-up should carry cards that identify them only by number and should be referred to only by their number. As with photo arrays, each witness must view the line-up independently, out of the presence and hearing of the other witnesses.
G. The investigating officer should explain to the witness that a second officer (the line-up administrator) will be conducting the line-up, and that he/she does not know the identity of the people participating.
H. The investigating officer should carefully instruct the witness by reading from a departmental Line-up Instruction Form, and the witness should be asked to sign the form indicating that he/she understands the instructions. The officer should also sign and date the form.
I. The investigating officer should leave the room while the line-up administrator conducts the line-up.
J. The line-up should be conducted so that the suspect and fillers do not actually line up, but rather so that they are displayed to the witness one at a time. This can be accomplished by having them enter the room individually and leave before the next one enters.
K. The procedure for showing the participants to the witness and for obtaining a statement of certainty is the same as for photo arrays.
L. When an attorney for the suspect is present, the attorney should be permitted to make reasonable suggestions regarding the composition of the line-up and the manner in which it is to be conducted. Any suggestions made by the suspect's attorney should be included as part of the line-up report.
M. Allow counsel representing the accused sufficient time to confer with his/her client prior to the line-up. Once the line-up is commenced, attorneys should function primarily as observers and he/she should not be permitted to converse with the line-up participants, or with the witnesses, while the line-up is underway. The concept of blind administration requires that no one be present who knows the identity of the suspect. For this reason, the attorney should leave the room before the line-up begins. An attorney who does not know which person is the defendant may attend the line-up in place of the suspect’s attorney.
N. The suspect's attorney is not legally entitled to the names or addresses of the witnesses attending a line-up if the suspect has not yet been arraigned or indicted. If an attorney in such a situation insists on having information about line-up witnesses, advise him/her to direct his/her request to the State's Attorney's Office.
O. During a line-up, each participant may be directed to wear certain clothing, to put on or take off certain clothing, to take certain positions or to walk or move in a certain way. If officers are to ask the participants to wear an article of clothing, they must guard against circumstances where the article only fits the suspect. All line-up participants shall be asked to perform the same actions.
P. Line-up participants must not speak during the line-up. If identification of the suspect’s voice is desired, a separate procedure must be conducted. (See section on voice identification below.)
Q. After a person has been arrested, he/she may be required to participate in a line-up regarding the crime for which he/she was arrested. After arrest, a suspect may lawfully refuse to participate in a line-up only if he/she has a right to have counsel present (post arraignment/indictment) and the counsel is absent through no fault of the suspect or his/her attorney.
2.400.22 Voice Identification
A. Although considerably less common than visual identifications, voice identifications may be helpful to criminal investigations where the victim or other witness was blind, the crime took place in the dark, the subject was masked, the witness’ eyes were covered by the perpetrator, or they were never in the same room with the perpetrator but heard his/her voice. If officers wish to conduct a voice identification procedure with a witness who also saw the subject, they must first consult with a detective supervisor and, when feasible, the State's Attorney's Office.
B. As with any in-person identification or confrontation, if the suspect has been arraigned or indicted, he/she has a right to the presence of counsel at the voice identification procedure.
C. Where a voice identification is attempted, the following procedures should be employed to the extent possible:
1. As in a line-up, there should be at least six persons whose voices will be listened to by the witness; one-on-one confrontations should be avoided. Because line-ups will be administered by an officer who does not know the identity of the suspect, the fillers should not be known to the officer administering the procedure, and officers should abide by the guidelines for photo array and line-up fillers as described above;
2. The suspect and other participants shall not be visible to the witness; this can be done by using a partition, or by similar means;
3. All participants, including the suspect, shall be instructed to speak the same words in the same order;
4. The words recited by the participants shall not be the ones spoken by the offender during the crime; the line-up participants should speak neutral words in a normal tone of voice;
5. When both a visual and voice line-up are conducted, the witness should be informed that the line-up participants will be called in a different order and by different numbers;
6. If there are two or more suspects of a particular crime, present each suspect to witnesses in separate line-ups. Different fillers should be used to compose each line-up.
D. As with any identification procedure, police officers should avoid any words or actions that suggest to the voice witness that a positive identification is expected or who they expect the witness to identify.
E. The investigating officer should carefully instruct the witness by reading from a departmental Voice Identification Line-up Instruction Form, and the witness should be asked to sign the form indicating that he/she understands the instructions. The officer should also sign and date the form. If practicable, the officer should record the procedure.
F. Adhere to the principles of blind administration as described above. As is the case with photo arrays and line-ups, the investigating officer should leave the room while the administrator conducts the procedure.
2.400.24 Courtroom Identification
A. Prior to conducting any courtroom identification procedure, officers should consult the State's Attorney's Office. The same right to an attorney and the same due process considerations that apply to all other identification procedures also apply to station house and courtroom identifications.
- If the suspect has been arraigned or indicted, he/she has a right to have counsel present at any in-person identification/confrontation.
2. Live confrontations and informal viewings of the suspect by witnesses must be conducted in such a manner as to minimize any undue suggestiveness.
3. Officers shall not state or suggest that the suspect has been arrested or booked or that he/she has made any confession or incriminating statement or that any incriminating evidence has been uncovered. The witness' identification, particularly if it takes place in a police station or courtroom, must be a result of his/her recollection of the appearance of the perpetrator and must not be unduly influenced by information or suggestions originating from the police.
2.400.26 Drawings and Identi-Kit Composites
A. An artist's sketch, composite sketch or a computerized drawing can sometimes aid an investigation if the witness has a good recollection of the offender's facial features. However, research has shown that a person selected based on resemblance to composite is more likely to be mistakenly identified. Additionally, building a composite has been shown to lower a witness’ accuracy for identifying the offender’s face. For these reasons, officers should proceed with extreme caution. Prior to attempting a sketch or composite, officers should take from the witness and document a full description of the offender.
- A sketch prepared by a trained artist is preferred over a composite.
- Sketches and composites should not be attempted prior to the showing of a photo array or line-up.
- Once the sketch or composite has been completed, the witness should be asked to state in his/her own words how accurately the composite reflects how the suspect appeared during the crime and a report should be prepared regarding the sketch or composite procedure.
- The fact that a suspect resembles a sketch or composite is not, without more, probable cause to believe that the suspect is the offender.
2.400.28 Mug Shots
A. When an investigation has failed to identify a suspect, it may be advisable to have eyewitnesses come to the police station to look through photographic or "mug" files. However, officers should not resort to this procedure until other investigative avenues have been exhausted. Research has shown that exposing a witness to a large number of random photos can damage the witness's memory of the offender. Additionally, a witness who does not initially select a mug shot may later identify the person in a photo array not because he/she is the offender, but because the witness recalls seeing the face. Therefore, extreme caution must be used when showing mug files.
- Before showing mug shots, remove the photos of people not likely involved in the incident and narrow the pool of photos as much as possible;
- Record the name of the people whose mug shots were viewed by the witness;
- Remove or hide any information on the photographs that might in any way influence the witness;
- Ensure that the files contain only one photograph of each individual and that the photographs are reasonably current;
- Do not refer to the photographs as "mug shots";
- If photographs of various formats are used, ensure that several of each format are used;
- Permit the witness to look at a number of photographs before making his/her selection;
- Do not call to the attention of the witness any particular photograph;
- A report shall be filed following the procedure, regardless of whether an identification is made. The report should describe the photographs viewed by the witness(s).
- Officers should be extremely cautious before charging a subject based on this type of identification alone.