So I’ve been watching reruns of crime shows, which is almost certainly not a good use of my time, and they have these bizarre line up things. A bunch of men march in and stand in a line and move forward and backwards as if they had trained to do this and had practiced for weeks. Is this a real thing, and if so, where do they get these men to stand around in these lines? Do they pay them? Are they professional line up people?

From a staff report I did ten years ago:

As with many legal questions, the answer depends a great deal on where you are. Each of our fifty states has statutory and/or case law that governs what …er… lines the lineup process may and may not cross. There are federal constitutional guarantees as well. Individual police departments may add their own procedures to the mix as well. So there is no clear, one-size-fits-all answer to how lineups are conducted.

That said, however, there are a few aspects of the lineup that are more or less constant. The lineup cannot be unduly suggestive – you may recall the scene in Running Scared where the accused is paraded in as part of a lineup, and each of the other lineup participants is a uniformed police officer. We chuckle at the over-the-top situation, but it nicely highlights the prime requirement for a lineup: it must be a fair opportunity for a witness to select a perpetrator from among a set of choices that all match the general description the witness gave; it cannot unfairly suggest a particular choice.

The Supreme Court has spoken to the issue of lineups a number of times, beginning with the basic statement that the Fifth Amendment constitutional privilege against self-incrimination does not apply to appearance in lineups. (Schmerber v. California, 384 U.S. 757 (1966)). The accused has right to counsel at a post-indictment lineup (US v. Wade, 388 U.S. 218, (1967)); the Due Process Clause forbids government use of an impermissibly suggestive out-of-court identification procedure and the question is resolved by looking at all the circumstances of the lineup (Manson v. Brathwaite, 432 U.S. 98, (1977));

Some of the factors that weigh towards a finding of undue suggestion include: more than one witness viewing a lineup at the same time, because each may influence the others, shoring up the degree of certainty each witness has; telling the witness that a suspect is in the lineup; telling the witness that the suspect has a special characteristic, such as a tattoo, unusual height, or a unique aspect of physical appearance. Suggestive remarks by the police even after the lineup is complete can cause problems – the cops cannot tell a witness he’s selected the wrong person.

In an effort to consolidate the various requirements and provide a step-by-step guide for local law enforcement, in 1999 the Department of Justice published Eyewitness Evidence: A Guide for Law Enforcement. This handy document walks police through the process of setting up a solid lineup. Among its dictates:

• Include only one suspect in each identification procedure.

• Select fillers (non-suspects) who generally fit the witness’ description of the perpetrator.

• Place suspects in different positions in each lineup, both across cases and with multiple witnesses in the same case.

• Include a minimum of four fillers per identification procedure.

• When showing a new suspect, avoid reusing fillers in lineups shown to the same witness.

• Create a consistent appearance between the suspect and fillers with respect to any unique or unusual feature (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature.

This segues nicely back to your question: where do the fillers come from?

Often they come from a ready source for police – jail. Police will use volunteers from the pokey to round out fillers for a lineup – they have the requisite beady eyes of the criminal class, after all, and are an easily-tapped resource. Most guys in local lockup are happy to participate simply to break up the monotony of the day, and it is a completely voluntary assignment. According to Telis Demos in a Slate article from October 2005, the police aren’t adverse to pulling people off the street – especially if they need a particular look. If the suspect had a Mohawk, for example, they may not have four filler candidates with Mohawks in the local jail; the cops in New York will pay $10 to passers-by that fit the needed description to stand in a lineup for a few minutes. Police will also use other officers, civilian office workers, or anyone else they can convince if need be.

Sometimes the best advice is ignored. Perhaps Durham County District Attorney Mike Nifong and Durham Police Sergeant Mark Gottlieb were watching Running Scared instead of reading the Department of Justice lineup guidelines. Defense attorneys pointed out that a woman accusing members of the Duke University lacrosse team of sexually assaulting her was shown photos of… the Duke University lacrosse team. There were, in other words, no “fillers” at all – every picture she was shown, according to the defense lawyer, was of a team member. Not surprisingly, the woman picked three members of the team as her attackers. The Durham investigation has since come under heavy criticism for the reasons mentioned in the paragraphs above.

In light of that apparent debacle, and other dramatic failures of lineups in the past – most notably, the spate of cases from pre-DNA years in which defendants were identified in a lineup, convicted, and then exonerated when the science of DNA testing was applied to their cases – many groups are now suggesting that even more rigorous procedures be applied to lineups. Gary L. Wells, a professor of psychology at Iowa State University, is a strong proponent of blind sequential lineups. This is a method in which photos are used in place of live people, each photo is shown in turn to the witness rather than presenting multiple faces at once, and the person administering the photo lineup is unaware of who the actual suspect is. The latter condition is the “blind” part, and refers to the general study technique of a double-blind experiment, in which neither the tester nor the test administrator is aware of the “right” answer. “The double-blind is a staple of science,” says Wells, and “it makes as much sense to do it in a lineup as it does in an experiment or drug trial.” In Wells’ classroom studies, the blind sequential lineup method reduced the number of times witnesses chose an innocent person, and did not affect number of times they chose the right one.

Other researchers have not reached the same conclusions. A study conducted in Illinois at the behest of the Governor’s Commission on Capital Punishment directly compared sequential and traditional lineups, and in 700 lineups found that:

• Witnesses using the simultaneous method chose the correct suspect 60 percent of the time, and the sequential lineups only 45 percent of the time
• Witnesses in the sequential lineups picked a filler 9 percent of the time; versus 3 percent in the simultaneous lineups
• Witnesses could not make a selection in 47 percent of the sequential lineups, compared with 38 percent of the simultaneous ones

Critics of the Illinois study claim that officers were able to influence the witnesses during the traditional simultaneous method, and that this skewed the results.

In some jurisdictions, it may simply be that the law will have to catch up with the times. New York City, for example, requires a live lineup if the results are to be admissible in evidence.

Regardless of the ultimate decisions regarding sequential versus simultaneous lineups, however, it seems safe to opine that the other reforms can do nothing but good to reduce error in witness identifications.