870.80, Eyewitness Identification
- State v. Lawson, 352 Or. 724 (2012)
- Preliminary Checklist (Information to gather before any type of identification process)
- Eyewitness Identification Form (Photo Lineup)
- Eyewitness Identification Form (Show-Up)
- Blind Presentation: The presenter does not know who the suspect is; this is also known as double-blind presentation.
- Blinded Presentation: The equivalent of a blind presentation; used when the presenter knows who the suspect is. To be conducted so that the presenter does not know which photograph is being presented to the witness.
- Confidence Statement: A witness’s statement about the pick the witness made and of his or her confidence in that pick; taken immediately after a pick has been made.
- Photo Lineup: A presentation of photographs of persons to a witness.
- Presenter: The member presenting a lineup.
- Sequential: A presentation of photographs in a photo line-up one at a time, retrieving one photo before presenting another.
- Show-up: A presentation to a witness of a live person in the field that is close in time and proximity to the incident under investigation.
- Simultaneous: A presentation at the same time of photographs in a photo line-up arrayed together, either manually constructed or computer generated.
- Science continues to study identification processes to improve the accuracy of eyewitness identification evidence. The Portland Police Bureau strives to keep pace with new laws and scientific standards to implement identification techniques that further investigations.
1.1. Instructions to witnesses shall be read from the Eyewitness Identification form. This form will also be used to document the witness’ identification statements.
1.2. In addition to documentation in the incident report(s) and on Eyewitness Identification forms, when it is reasonable, practical and consistent with the best interests of the investigation, presenters should consider audio-recording the presentation. When a decision is made to record, the witness must be informed of the recordation. If the witness does not agree to recordation, the presentation should not be recorded.
1.3. Lineups, forms, and recordings shall be treated as evidence, with copies of the lineups, forms and any recordings included in the case file, whether or not the witnesses made identifications.
1.4. If a photo lineup is developed electronically, the lineup shall be printed for documentation.
1.5. See also Post-Presentation Interview and Documentation (Section 2.4).
2. Photo Lineup:
2.1. About Photo Lineup:
2.1.1. When a photo lineup is used for suspect identification, a blind or blinded sequential presentation should be used whenever reasonably possible; consequently, the procedures that appear below are designed primarily for blind or blinded sequential presentations. If another photo lineup method is used, including a simultaneous presentation or a sequential presentation that is not blind or blinded, the reason(s) for using that method should be documented.
2.2. Development of a Photo Lineup:
2.2.1. Members should obtain a thorough suspect description from each witness before developing a photo lineup. (Note that differing suspect descriptions among the witnesses may require the presentation of different photo lineups to different witnesses.) See Preliminary Checklist “information to gather before any identification process.”
2.2.2. A photo lineup shall consist of no fewer than six (6) photographs, including one (1) of the suspect.
2.2.3. All photos should be similarly sized and should be of similar-appearing individuals. None should be obviously different from the others.
184.108.40.206. Filler photographs (not of a suspect) should generally match, to the extent reasonably possible, the particular witness’ description of the suspect. Because filler photographs and witness descriptions of the suspect may vary from each other to some degree, it is permissible for filler photographs to differ from each other and from the suspect’s photo or description, so long as the differences do not make the suspect’s photo or description disproportionately stand out from the others.
220.127.116.11. When there is a limited or insufficient suspect description, or when the witness’ description of the suspect differs significantly from the available photograph(s) of the suspect, the filler photographs should resemble the suspect photograph, not the description.
2.2.4. The photos shall be numbered and in individual folders or envelopes attached to opaque backing such as light cardboard or equivalent. The number on the photo should be placed so that the presenter cannot see it when presenting in a “blinded presentation.” (See process below, Section 2.3.3.).
2.2.5. When conducting a single lineup for multiple witnesses, the photographs should be presented to each witness in a different sequence. Another alternative is a random or shuffled presentation for each witness. When a random or shuffled presentation is used, the order of presentation should be recorded afterwards.
2.3. Presentation of Photo Lineup:
2.3.1. Instructions to Witnesses:
18.104.22.168. Prior to a presentation, the presenter shall read the witness instructions from the Eyewitness Identification form, ensuring and documenting that the witness understands the instructions.
2.3.2. Blind Presentation:
22.214.171.124. In a blind presentation, the identity of the suspect is not known to the presenter.
126.96.36.199. The presenter shall present the photos to the witness sequentially, with one photo replacing another so that no two are presented at the same time. After each photo is presented, the presenter will ask: “Is this the person you saw?,” before presenting the next photo and the answer will be documented.
188.8.131.52. The presenter shall present each photo to the witness, even if the witness identifies a photo as the suspect.
184.108.40.206. If, during the same presentation, the witness asks to see one or more photos again, the presenter may conduct the same presentation a second time but must present all of the photos, using the same method and order of presentation. If the witness gives a different answer as to a particular photo(s), then the witness will be asked to explain the reason for the change.
2.3.3. Blinded Presentation:
220.127.116.11. See also the steps for presenting photos under “Blind Presentation,” above. These steps should be followed as modified below.
18.104.22.168.1. If the presenter knows who the suspect is, an extra measure of care should be taken to prevent the presenter from knowing which photo is being shown to the witness as the process occurs.
22.214.171.124.1.1. One option is for the photos to be placed in identical folders or envelopes, with the folders or envelopes numbered inside and shuffled. Each photo shall then be presented so that only the witness can see the photo; the presenter is thus “blinded” to the process and it cannot, therefore, be suggestive.
126.96.36.199.1.2. A second option for “blinded” presentation is for the photos to be adhered to equally-sized and shaped pieces of opaque material (such as light cardboard) to create “cards,” with each card containing one photograph. The cards shall be numbered on front, so that the presenter cannot see the number. These cards will then be shuffled, face-down, and presented so that only the witness can see the photo.
188.8.131.52.1.3. Equivalent methods to the first two may be adopted and used, so long as the presenter is blinded to the process and the process is documented.
184.108.40.206.1.4. When a blinded presentation is used, the order of presentation shall be recorded afterward, using the number on the card or folder. If an alternative presentation method is used, then the order must also be recorded.
220.127.116.11.1.5. In addition to documentation in the incident report(s) and on Eyewitness Identification forms, when it is reasonable, practical and consistent with the best interests of the investigation, presenters should consider audio-recording the presentation. When a decision is made to record, the witness must be informed of the recordation. If the witness does not agree to recordation, the presentation should not be recorded.
2.4. Post-Presentation Interview and Documentation:
2.4.1. After the presentation of a photo lineup, the presenter shall avoid any words or actions that might identify the suspect or hinder further investigation. The investigator shall not tell the witness who the suspect is or whether the witness has picked the person whom the investigator believes committed the crime. There will be situations, however, when it is appropriate and necessary within the investigation to identify the suspect to the witness to further the investigation or address public safety needs. If so, then the situation and reasons must be clearly documented.
2.4.2. If the witness picks a photo, the presenter shall ask the witness to describe why the photo was selected. The presenter shall obtain a description of reasons for the witness’ selection in the witness’ own words. While it is acceptable for the witness to use a scale (e.g. “90% sure,” or “six out of ten”), it is best to avoid scales. The witness’ responses to questions about their reasons for their selection and their confidence, which is commonly referred to together as a “confidence statement,” shall be documented on the Eyewitness Identification form (attached) and in the investigator’s report. To do this, it is important to ask the witness the questions regarding the “suspect description,” “context,” and “witness factors” found at the end of this document, or their equivalent, and to document the answers. Leading questions are to be avoided.
2.4.3. The presenter shall ask the witness to affirm the confidence statement on the Eyewitness Identification form by reviewing the statement summary and, if accurate, sign the form.
3.1. About Show-Ups:
3.1.1. Members are to be aware that this section is more restrictive than the law. Show-ups are a valuable tool for quickly identifying or excluding suspects shortly after an incident. Show-ups in general should not be conducted more than one (1) hour after the incident. In rare circumstances it may be necessary to conduct a show-up up to three (3) hours after the incident, but it must be articulated in detail as to why a photo lineup could not be used instead. In all circumstances variables that could impact identification accuracy should be documented, which generally include, but are not limited to: stress, weapon focus, violence, exposure time, and cross-race bias.
3.1.2. Show-ups are particularly valuable because they capture the entire head-to-toe appearance of a possible suspect shortly after the incident in question, including features that may not appear in stored photographs such as hair length, style and color, facial hair, tattoos, piercings, clothing, shoes, jewelry, carried items (backpacks, purses, etc.) and state of intoxication. Show-ups can be conducted much more quickly than photo line-ups, and many investigations benefit from the prompt display of a suspect to a witness. Show-ups also result in a shorter retention time for possible suspects than if they were held while a photo lineup is prepared. These reasons, and the fact that they capture the entire, current appearance of the individual, make show-ups an important and valid identification procedure.
3.2. Conducting Show-Ups:
3.2.1. Obtain a thorough description of the suspect from each witness before the show-up. See Preliminary Checklist “information to gather before any identification process.”
3.2.2. Ensure that, while making the presentation, all participating officers avoid words or conduct suggesting that the individual presented is criminally liable.
3.2.3. To the extent reasonably possible, avoid tarnishing the suspect by, for example, presenting a suspect in handcuffs or in the back seat of a police car.
3.2.4. Transport the witness to the suspect’s location, not the suspect to the witness.
3.2.5. Separate witnesses before, during and, to the extent reasonably possible, after the show-up to avoid communication between them. If witnesses cannot be separated afterward (e.g. they are family members, friends or co-workers), then ask the witnesses not to discuss their identifications with each other.
3.2.6. Read the instructions from the Eyewitness Identification form, ensuring and documenting that the witness understands the instructions.
3.2.7. Document the witness’s statement on the Eyewitness Identification form.
3.2.8. Document the circumstances of the show-up:
18.104.22.168. The time of the show up.
22.214.171.124. The admonishment given before the show-up.
126.96.36.199. All statements made by the witness during the show-up.
188.8.131.52. Exactly what the witness said about the identification.
184.108.40.206. Document what reminded the witness of the suspect; (e.g. the reasons the witness made the identification).
220.127.116.11. It is best not to use a scale of 1-10 or a percentage to describe level of certainty, unless the witness must do so; give reasons instead.
18.104.22.168. Document any conversations witnesses may have had with each other before or during their identification.
22.214.171.124. Document the lighting at the show up.
126.96.36.199. Note the distance between the witness and the suspect at the show-up.
3.2.9. If a witness identifies the suspect, photograph the clothing and identifying features:
188.8.131.52. Photograph the suspect in the clothing worn upon apprehension including coat, backpack, hat and shoes.
184.108.40.206. If the witness includes these characteristics in the identification, also photo the teeth, hands (including jewelry), birthmarks, scars, tattoos and piercings.
3.2.10. Seize the clothing, shoes, hat, jewelry, etc. if it was involved in the identification.
220.127.116.11. Seize all such clothing incident to arrest or pursuant to a search warrant as evidence of the crime (defendant’s identity) as directed by your local prosecuting authority.
18.104.22.168. Clothing and other apparel may be useful in identifying a suspect.
22.214.171.124. Do not confirm for the witness that the witness identified a person whom the investigator believes committed the crime in question, unless there is a significant reason for doing this, which must be documented.
3.2.11. If the witness identifies the suspect, but does not sign any required forms, note the refusal to sign in an appropriate police report.
3.2.12. If the witness does not identify the suspect, the circumstances and responses shall also be documented on the Eyewitness Identification form and in the report including:
126.96.36.199. Exactly what the witness said about the identification.
188.8.131.52. Ask the witness how the person differed from the suspect and document the answer.
184.108.40.206. Photograph the individual to document his or her appearance.
4. Witness with Limited or No English Proficiency:
4.1. If a witness to a criminal offense has difficulty communicating (e.g. deaf or hard of hearing, limited English proficiency), then investigators shall arrange for an interpreter before proceeding with any eyewitness identification procedure. Investigators shall document the name of the company and the interpreter providing services in an appropriate police report.
4.2. Before the interpreter is permitted to discuss any matter with the witness, the investigating officer shall explain the process that will be used to the interpreter. Once it is clear that the interpreter can communicate effectively with the witness, and that the interpreter understands the process and can explain it to the witness, the eyewitness identification may proceed.
5. Multiple Presentations of the Same Suspect to a Witness:
5.1. It is rare for a suspect to be presented for identification more than once in any form to a given witness. There may, however, be valid reasons for multiple presentations of the same suspect to the same witness. For example, when the earlier photo used was outdated and did not accurately represent the suspect’s current appearance, it may be appropriate to obtain a more current and accurate photo and present the same suspect in a second identification procedure to the witness. Members should consult with the Detectives Division if the need for multiple presentations occurs and the reason(s) for the subsequent presentation shall be documented.
6.1. All sworn personnel shall receive training on this Directive and the presentation of lineups and show-ups.
- Originating Directive Effective: 09/06/01
- First Revision Effective: 09/05/03
- Second Revision Effective: 10/01/08
- Third Revision Effective: 09/16/15
- Next Review Date: 09/16/17
- Review By: Investigations Branch