Mistaken identification by an eyewitness is the most common cause of wrongful convictions in this country.
Contrary to what is commonly believed, human memory is not like a recording, and suggestive circumstances can change or create memories.
To combat that trend, Illinois passed a new law governing lineup and photo spread procedures, 725 ILCS 5/107A-2. This law went into effect on January 1, 2015.
How Illinois Attempted to Reform Police Lineup Procedures
This law has 11 key provisions that are designed to reform the way identifications are usually made in criminal cases. I have highlighted the most important changes below.
First, all witnesses should be kept separated "Whenever practicable" If they cannot be kept separated, they are to be monitored so that they cannot communicate about who the suspect might be and thereby influence each other.
Before viewing the lineup, the witnesses should each be separately instructed. They should be told that the police will make an audio and video recording of the lineup and the witnesses if practicable, that a witness may refuse to be recorded, that the offender may or may not be in the lineup, that the administrator does not know the identity of the suspect, that the witness should not feel compelled to make an identification, that it is as important to exclude innocent people as it is to identify a perpetrator, and that the investigation will continue even if no identification is made. These reforms have the potential to help if the police really give these instructions, because it will let witnesses know that they do not have to make an identification.
The new law provides for four possible methods to conduct a lineup. The methods are (1) conducting a lineup using an independent administrator, (in other words, an officer who does not know the identity of the suspect) should be used unless it is not practical. This is to ensure that the officer cannot tip off the witness, either intentionally or unconsciously; (2) using an automated computer program to display a photo lineup. The program is supposed to show the witness the photos in such a way that the officers present cannot see them. This provision allows police departments to show the photos one at a time or all at once. Allowing the police to show all of the photos or lineup participants at the same time is a big flaw in the law. Witnesses who view photo arrays or lineups all at once pick the person who most resembles the suspect. The better practice is to show photos or lineup participants one at a time to see if the witness can identify a person as the offender; (3) placing photographs inside of folders and shuffle them. Again, unfortunately they may be presented all at once; (4) a catchall that says "any other method that prevents the administrator from knowing the identity of the suspect, or from seeing or knowing which photographs are being presented to or viewed by the witness."
The statute provides specific procedures that should be followed to increase the fairness of the lineups. Lineups should only include one suspect. Believe or not, I have tried plenty of cases with two or three suspects in a lineup of 5 or 6 people, so this is a welcome change. The new law recommends five fillers, (non-suspects), when practicable, but at least 3. The fillers should resemble as much as practicable the witnesses' description of the perpetrator's significant features. You might think this to be common sense, but I once fought a case with a line-up in which the suspect and my client were both extremely short. The fillers in the lineup were taken from the police midnight basketball league, and they were all taller than 6' 2". If a witness views more than one lineup, new fillers must be used each time. If there is more than one witness, the suspect's position should be changed. These changes, if implemented, should lead to fewer false identifications.
The law prohibits a variety of acts that would convey the suspect's identity, such as telling the witness the position in the lineup of the suspect, using a mug shot in a photo array, allowing witnesses to see information about prior arrests or indictments, and so forth. The problem I have with this provision is that any officer willing to tell a witness that the suspect is number three in a lineup is also likely to deny having done so. Recording the procedures would solve this problem, but the law only says it should be done "if practicable" and allows the witnesses to refuse to be recorded. This is ripe for abuse. "You don't want to be recorded, do you?" "No?" "Okay, the camera is off. The suspect is number three."
The statute has procedures for recording the lineup proceedings. The administrator is to make an official report which should include all identifications and non-identifications, signed by the eyewitness, including any and all statements made by the eyewitness; the names of everyone who viewed the lineup; the date, time and place of the lineup; the source of persons or photos used in the lineup; if photos were used, the actual photos; and if a live lineup, a photo or visual recording of the lineup.
Why Illinois' Police Lineup Procedure Reform May Have Little Impact
What happens if these procedures are not followed? That becomes "a factor to be considered by the court in adjudicating a motion to suppress an eyewitness identification or any other motion to bar an eyewitness identification." Also, "[w]hen warranted by the evidence presented at trial, the jury shall be instructed that it may consider all the facts and circumstances including compliance or non-compliance with this Section to assist in its weighing of the identification testimony of an eyewitness."
In my opinion, this last section guts the whole law. Even before this law was passed defense attorneys could challenge unfair lineups and procedures, when they could prove them. They could also raise to the jury the unfair circumstances surrounding identifications. It rarely did much good. Unless judges use this new law to compel the police to use only fair identification practices by suppressing unfair ones, false identifications by eye witnesses will continue.