So, still no cite for whether your hypothetical has ever happened IRL? As to whether photo arrays require fillers, I think you’ll find that the answer is an unequivocal “yes.”
I think (but am not sure) that even if you point at a guy at the scene and say “he did it”, you are later required to repeat this ID in a lineup with fillers. Maybe not though, IANAC.
Here’s my GQ thread let’s see if any of our resident legal eagles/cops can provide their own experiences and thoughts on it.
Ok, here’s a cite describing a “show-up” identification procedure, vs. a “line-up”. there are no fillers, the accusers are shown the person, alone, and indicate whether or not he’s the guy who robbed them.
Which is precisely the situation *I *described, but not the one you described. You described a situation where the police take the complaining witness back to the scene, and ask her which of them assaulted her.
How in hell could there be fillers when the police show up at the scene? Do you think they carry them around in a van for just such an occasion?
You don’t seem to understand that photo lineups *are not the same * as first person, immediately-at-the scene IDs. That’s why there are protocols.
No one is arguing that when a victim calls poolice to a scene and identifies her assailant that somehow protocol is violated. That is not the scenario you suggested as your justification for the photo array; not even close.
The problem people keep coming up with regarding the photo identification in this case is that “there are no wrong answers”, as if that is a requirement for an identification to be valid. With the linked article there were no wrong answers either, if these girls wanted to railroad the guy, they could have. Multiple wrong choices are not required for an identification to be valid.
I say, if it’s valid to grab a guy from the street, park him in front of the accuser, alone, to be identified, then it’s just as valid to grab all the guys from the party, park them in front of the accuser (live or via photo) and have her point the finger at her attackers, as long as she’s identified her attackers as guests at the party.
I’ll point out the obvious, which is that lineups typically (and certainly in this case) occur a substantial period of time after the alleged incident. We reflexively (and probably properly) tend to place more reliance on contemporaneous identification of persons and events than on a recall of them from even a few hours later). I won’t go into all the areas where the law similarly elevates in-the-moment statements as generally being of greater evidentiary value (present sense impression and excited utterance exceptions to the hearsay rule are some examples off the top of my head, if you are interested), but suffice to say it does. The reason for the lineup procedure is in part, then, this fundamental belief that a contemporaneous ID will more often be reliable than one days or weeks later.
Let me also conceptually address the “no wrong answers” point. Here is what people mean when they say that: Dumbfuck Nifong’s theory of the case (an argument he would make to the jury) was going to be: “At least two facts strongly point to the defendants’ guilt. First, Lying Whore Crystal Mangum saw these three racist thugs rape her that night and reported it. Second, not only that, Lying Whore Crystal Mangum later picked those VERY SAME three racist thugs out of a completely-not-rigged photo lineup, which is EVEN FURTHER proof that they are the ones who committed this outrage.”
The fallacy there would lie in the notion that Lying Whore Crystal’s “identification” in the lineup constituted INCREMENTAL or SEPARATE proof of identification of a perp. Because “there were no wrong answers” – i.e., because she could in fact have picked any three guys (with a blindfold on), and Dumbfuck Nifong would have said – “AHA – I knew it – they’re the guilty lacrosse players, it’s entirely consistent with her police report, therefore I’m indicting” the photo ID is NOT incremental proof of anything and adds ZERO to the police report (in reality it detracts from her credibility because of her comments about the phantom moustache, etc.), but would have been portrayed by Dumbfuck Nifong as though it did constitute a separate quantum of proof.
ID’s on the street, at the scene, at the time of the crime are not the same thing. I have no idea why you keep insisting that they are. In 2002, former NC Supreme Chief Court Justice I. Beverly Lake (A conservative Repuclican, FWIW) initiated the Actual Innocence Profect, out of a concern about declining integrity in the state’s ID system. Here are the guidlines they developed, guidlines followed in some fashion or another by every jurisdiction in the state.
http://www.innocenceproject.org/docs/NC_Innocence_Commission_Identification.html
Included are these recommendations.
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- The individual conducting the photo or live lineup should not know the identity of the actual suspect. This is called a double-blind procedure and addresses misidentifications resulting from unintentional influences from those conducting the identification procedure.
* Witnesses should be instructed that the suspect may or may not be in the lineup.
* A minimum of eight photos should be used in photo identification procedures.*
Here is a link to a Raleigh News and Observoer news story concerning the Durham City Police Department General Order. http://www.newsobserver.com/1185/story/434410.html
Pertinent part of the Order–
*The lineup procedure ran contrary in two fundamental ways to the police department’s General Order 4077 on Eyewitness Identification issued in February.
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Policy calls for an independent administrator to run the lineup, not the primary investigator. This avoids any unintentional influence from the investigator.
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The lineup should include five “fillers” – people who have no connection to the case – for every suspect, to protect against faulty identification. If an accuser picks a filler photograph, the defense is certain to challenge that witness’s reliability
So not only did the lineup violate statewide guidelines, it violated Durham City protocol.
You say wrong.
But they are required for a lineup conducted by the police to be valid.
The obvious point is that a valid lineup must allow for the possibility that the accuser is either mistaken or lying. Inserting “filler” pictures is trivially easy to do and would have little to no effect on the indentifications made by an honest accuser who actually saw her assailants.
But it’s likely to be a serious impediment to a false accuser, and thus has a strong effect of making the outcome of the lineup reliable - so much so that failure to follow these procedures renders the lineup invalid.
The lineup that led to the indictments was so flawed that even if other evidence existed of the accused player’s guilt, this alone could be sufficient reason for the case to be thrown out. Since (as even Nifong now admits) there’s no such evidence, this case is a joke - something that Nifong has known for a long time.
He knew there was no rape before he sought the indictment. He had the DNA results in his pocket eight months before he dropped the rape charges.
It will be very interesting to see how this plays out WRT Nifong. NC is notoriously lax in punishing rogue DAs. In this case, it will be extremely hard not to.
Even that scenario has its pitfalls. Check out this post by Way Too Happy. Scary stuff.
I agree with this, the identification is not additional proof, it is merely clarifying the initial complaint.
And I have no idea why you’re so hell bent on saying that a photo ID is such a completely different animal than an “on the scene” ID that using the same process results in a worthless identification. Oh, it’s just hunky dory to stand the accused alone in front of the squad car for an ID, but to hand someone his photo is rigging the investigation.
Here’s a link to a brilliantly researched and written piece on proper police lineup procedure.
A valid identification can be made wihtout the possibility that the accuser is mistaken, the show-up scenario I linked to before has no chance of the accusers being “wrong”. The police paraded the guy, alone, in front of the accusers for them to say “that’s the guy.” He could have been some random schlub, railroaded by the accusers, just like in the Duke case, but the process is still considered valid.
I’d also like to point out that it is a fact that the accuser did actually see the ‘assailants’ since we know for a fact she was in the room with them during the party.
His story here is that he dropped the charges because the accuser could no longer “say with certainty” that she’d been raped. Before the DNA results were in, he predicted they’d decide the case; when they came back negative, he said that he’d proceed “the old-fashioned way” - using the word of the accuser alone. KC Johnson has pointed out that this doesn’t work: you can prosecute in the absence of DNA evidence, but not in defiance of it.
Agreed - the evidence of serious misconduct is strong. From very early on, Nifong’s actions are wholly consistent with those of a guy who strongly believes the charges are bogus, but who needs the case for political gain. Why arrange a mockery of a lineup? Why refuse to look at alibi evidence (e.g. timestamped photos)? Why defer for months an interview with the accused? Why arrange for the lab to suppress the fact that DNA from unidentified males was found on the accuser?
But when police fail to allow for that possibility, they have violated standard procedure and the results of the lineup will be considered invalid. IOW, as has been noted, the standards for a valid police lineup are distinctly different than those for an identification made “on site” shortly after an alleged crime.
Good point - and it argues that even had she chosen suspects without alibis from a procedurally correct lineup, they’d have been able to say “Sure, I was at the party - no question the accuser saw me there. But that in no way means I attacked her.”
It is not the “same process,” no matter how many times you insist it is. Two clues – One involves real live people, one does not. One occurs within moments of the alleged crime, one occurs days or weeks later. What about that screams out “the same” to you?
Did you even read my cites? Do you understand them? Did you read Bricker’s report? Did you understand that? Do you understand that **Bricker **is a real live legal type Doper, the kind you were waiting on a comment from? What the hell else do you want? Did you read this part?
- Perhaps Mike Nifong, district attorney for Durham county, North Carolina, and Durham police sergeant Mark Gottlieb were watching The Usual Suspects instead of reading the DOJ guidelines.
I realize that that is his story. However, he has a duty to seek justice, and not prosecute when he believes the case to be false. Her quite detailed story described multiple penile penetrations and ejaculations by LAX players, as well as an assertion that her last intercourse was a week prior to the party. At the very least he should have asked her why the DNA from five unknown males was present, but no DNA from any LAX player, before proceeding to a grand jury.
What screams out to me is that I feel that a person can successfully identify another person via photo without having 8 other filler photos to look at. Just as they can identify a person in the flesh without 8 other people standing next to them.
Let me try another direction on my thoughts.
Did Nifong use a valid photo “line-up” for the identification? No. You’ve provided plenty of cites provide to prove that.
Do I think a “line-up” is the only way this accuser can successfully identify her attacker? No. I’ve provided a cite that shows the validity of a non-line-up method of identification.
That’s not a statement of what is and isn’t admissable in court, or what does or does not follow proper procedure. It’s a statement of my own personal analysis of the situation, and whether or not I’d trust an honest accuser accurately identifying her attacker with this process. You can’t trust a dishonest accuser at any point, with any process, so I don’t think it’s worth arguing about how a dishonest accuser will game the system.
Ding ding ding. An Aha! moment in a way.
Prosecutor’s job: it’s more important to not indict/convict innocent people than to mistakenly let go guilty people.
Purpose of justice system: Apply procedures that preserve the presumption of innocence and hold the State to a higher burden of affirmative proof than the criminal defendant.
Burden on honest accuser of having to pick her attacker out of a lineup full of irrelevant fillers, vs. from a single photo of the “known” suspect: low. How much harder is it, really? Not much, so little reason to skew toward a “suspects only” lineup.
Burden on defendant of being placed in a “suspects only” lineup when there is a dishonest accuser: immense.
When a particular procedure can provide wrongly accused suspects with huge protection (or, avert huge prejudice to them), and when it imposes little to no burden on the State or on honest accusers, there’s a reason that procedure is made standard protocol. Departing from it aids NO ONE but dishonest accusers and unethical prosecutors.