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How Can Photo Arrays Lead to Wrongful Charges?

Posted by Dmitry Gorin | Nov 21, 2023

A photo array, a photographic lineup, is a procedure law enforcement agencies use to identify crime suspects. It typically consists of photographs, including the suspect and several fillers, individuals not suspected of the crime, presented to an eyewitness.

A lineup is when a witness is presented with a group of people, usually standing side-by-side, and asked if they recognize the perpetrator. A photo array is similar, except it uses pictures rather than people. Police use these identification procedures during criminal investigations.

How Can Photo Arrays Lead to Wrongful Charges?
Photo arrays and lineups used by law enforcement are often fallible and lead to false charges.

The goal is to determine if the witness can identify the suspect from among the others based on their memory of the event. However, the reliability of this method can be influenced by various factors, making it a subject of scrutiny in legal proceedings.

Eyewitnesses have long been heralded as the linchpin in criminal investigations, providing crucial leads that prosecutors use to link suspects to criminal acts.

However, recent research and countless case studies have shown that eyewitness accounts can be flawed. This reality often comes to bear when an eyewitness is asked to identify a perpetrator in a lineup or a photo array.

Whether it's inconsistency within the witness's memory or the power of suggestion in how a photo or in-person lineup is arranged, this can often lead to wrongful charges.  Unfortunately, this can put the defendant at a considerable disadvantage, considering that jurors often consider eyewitnesses more reliable than they are.

Eyewitness misidentification is a significant cause of wrongful convictions in the United States.  The Innocence Project says it played a role in over 75% of DNA exoneration cases. In other words, lineups and photo arrays used by law enforcement can be unreliable and lead to false accusations and convictions if not administered properly.

The Unreliability of Eyewitness Accounts

Eyewitness accounts are often fraught with inaccuracies due to the human brain's fallibility in recollection. Some reasons why:

  • Emotional stress and fear. While these are common reactions when witnessing a crime, these emotions can also significantly impair a person's ability to remember details accurately. 
  • Memory errors. When the human brain has gaps in recollection, it instinctively tries to fill them, often with incorrect or misleading information. Thus, an eyewitness may testify to something untrue while genuinely believing they saw the crime as described.
  • Time. The passage of time between the incident and the identification process can lead to memory degradation, further muddying the waters of accurate identification. A witness may, with complete sincerity, misidentify a person due to these factors, leading to potentially disastrous consequences for the accused.

What Are the Problems with Photo Arrays and Lineups?

While photo arrays are frequently used by law enforcement and prosecutors as a simpler alternative to lineups for obtaining eyewitness identification, they are not immune to the issues described above. They often exacerbate them in one or more of the following ways:

  • Altered appearance. The individuals in the photos may have altered their appearance since the pictures were taken, causing difficulties in accurate identification.
  • Missing details. Photo arrays do not allow witnesses to observe vital details such as height, body language, and demeanor, which can influence identification accuracy.
  • Presentation of the array. Subtle cues from law enforcement officers, such as body language or tone of voice, can unintentionally influence a witness's selection. In some cases, photo arrays can even be manipulated to suggest a particular individual, increasing the likelihood of misidentification. This can happen with in-person lineups, as well.
  • False identification. Sometimes, witnesses can falsely identify an innocent person as the perpetrator by mistake. Memory is not foolproof. Perhaps there was poor lighting, an obstructed view, or they were under stress. After a witness has made an identification from a photo array or lineup, they are reluctant to change their mind. Even if mistaken, they will often stand by their decision.

How Can You Challenge Photo Arrays and Lineups in Court?

Suppose you have been wrongfully charged with a crime based on false eyewitness identification; a skilled attorney will know how to challenge the use of photo arrays and lineups in court.

Attorneys can scrutinize the selection process, how the lineup was presented to the witness and the conduct of law enforcement officers during the identification process. Let's look at some ways a skilled attorney can challenge these methods and possibly get wrongful charges dropped:

  • Questioning the Composition of the Photo Array: If the suspect's photo stands out, it could be argued that the lineup was suggestive and unfair.
  • Evaluating the Instructions Given to the Witness: If the police did not properly instruct the witness that the suspect might not be in the lineup, the defense may argue that the witness felt pressured to make an identification.
  • Scrutinizing the Number of Fillers: The defense can argue that not enough filler photos were included, which could have increased the chance of a false identification.
  • Assessing Eyewitness Confidence: The defense can question the level of confidence the eyewitness had at the time of identification. If they were unsure or changed their mind, this could cast doubt on the reliability of the identification.
  • Investigating the Administration of the Lineup: If an independent administrator did not administer the lineup, someone who does not know the suspect, the defense could argue that subtle cues may have influenced the witness's decision.
  • Checking for Post-Identification Feedback: If the witness received any feedback after making an identification (like being told they identified the right person), the defense could argue this inflated their confidence in their choice.
  • Verifying the Record of the Procedure: The defense can request a record to ensure everything was conducted properly and legally.

Legal experts have recommended some reforms to improve the accuracy of lineups and photo arrays, such as using blind administration where the officer conducting the lineup doesn't know the suspect, which could prevent them from influencing the witness.

Experts also suggest Instructing witnesses that the perpetrator may not be present or asking to state their confidence level at the time of identification. Some have suggested videotaping identification procedures to review for issues later.

Lineups and photo arrays often provide crucial evidence in criminal cases when properly administered, but they can also ruin someone's innocent life through misidentification. Since human memory is fallible, corroborating evidence should be required.

Contact our federal criminal defense lawyers for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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