I’ve searched my notes in vain for this case, so maybe someone here can point me in the right direction.
I recall that the police may not put a photo array in front of the witness and tell that witness that the suspect is one of the members of the array. They must leave it open that the suspect may not be any of the people pictured.
Which case said that? Or am I confusing protocol with a court decision?
From a scientific standpoint, you would ideally have the person presenting the photos to the witness not know which photo (if any) is of their suspect, for a good double-blind test. No idea if the law reflects that, though.
In NJ the cases are State v Delgado and State v Henderson. As far as I know NJ goes further than the Supreme Court has gone on the issue. The one federal case III know is US v Ash which states that the defendant does not have the right to a lawyer during a photo array.
Due to the Henderson decision here s the state AG guidelines for photo arrays changed last year.
Run its a PDF!
This may help, you can Shepardize it. Moore; 434 US 220;
at fn3:
In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the Court held that the Sixth Amendment does not require that defense counsel be present when a witness views police or prosecution photographic arrays. A photographic showing, unlike a corporeal identification, is not a “trial-like adversary confrontation” between an accused and agents of the government; hence, “no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.” Id., at 317, 93 S.Ct. at 2577. Moreover, even without attending the prosecution’s photographic showing, defense counsel has an equal chance to prepare for trial by presenting his own photographic displays to witnesses before trial. But “[d]uplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs.” Id., at 318 n. 10, 93 S.Ct., at 2578. An accused nevertheless is entitled to due process protection against the introduction of evidence of, or tainted by, unreliable identifications elicited through unnecessarily suggestive photographic displays. Id., at 320, 93 S.Ct., at 2579; Manson v. Brathwaite; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
Unnecessary photo displays would mean, IMO, a suggestion or statement that the potential defendant IS included. This could lead to mistaken identity.
The only time I have ever been shown a photo lineup, there was no hinting at all, and while I assumed the suspect was among the photos, I don’t think it was explicitly stated. I was unable to ID any of the pictures, and there was no pressure to pick one, beyond asking me to have a second look.
Someone bound to ask for details, so:
When I worked retail someone bought a big ticket item with a hot CC, and I wrote up the sale. It was many months later that the police had a suspect and wanted me to confirm that this person bought the item. All the photos were of 40-ish hispanic males. ALL of them seemed vaguely familiar. I could have sold that item to any of them, and none looked more familiar than the others…sorry detective.
As stated in the link above, in NJ the officer conducting the photo array can not be involved in the case. So the one conducting the array doesn’t know who is the suspect or if he is included.
What that article calls the “easy fix” to the police line up is exactly what we do.
Excellent. Thank you!
Great- but it’s not what all departments do. 
When I was a bank teller, five of us were rounded up to take a trip to ID a woman who was involved in a fairly elaborate check fraud ring. This woman was the one who misrepresented herself at the teller windows with different ID’s, so the five of us had seen her in person.
How did they make sure we all ID’d her? While explaining the trip we were about to take to the live lineup, the head of bank security (so, not a cop, and not at the station yet) showed each of us the security photo from when she was at each of our windows. Real easy to ID her once we got to the police station.
I wonder if using a method like that, now with the prevalence of so many cameras in the public way, would be kosher in cases of muggings and stuff. Like, having a camera footage photo in with the case file or something and allowing the victim/witness to look it over before the lineup. Especially now that they publish security photos so they’re accessible to anyone looking for them anyway.
As I linked earlier its actually state law. But no the procedure is not that clearly laid out in all states.
And you know the old line up with the witness behind a one way mirror? I’m sure that comes from somewhere and is done that way someplace but I have never seen that in any police station that I have been in. If I remember I’ll have to ask one of the county investigators if they have one of those rooms somewhere. I’ve never seen or heard of it used in my 15 years.
My wife and I went for a photo book “line-up.” Also with no results. (She was mugged. On 9/11, for Christ sake. If they’re caught, they should do extra time).
FWIW, I have read/seen TV? that cops will put a picture of some very famous person here and there, and when the witness passes enough of these they’ll stop the ID’ing, because they figure his eyes have glazed over. True?
Chicago! At least in the instance I mentioned above, though I don’t remember which station we went to. Somewhere southwest of downtown, I think. There were five women in the next room and we looked through a window to ID her. I imagine it was one-way glass. Details. It was probably 1995 when that happened.
IIRC, one of the things that got the Duke Lacrosse case tossed was the tainted photo line-up. The alleged victim was presented with an array of photos, all of whom were Duke Lacrosse members at the party. As the defense lawyer said, the problem is there were no wrong answers, so how reliable is the ID? Nevertheless, she ID’d one fellow among the bunch who was in a cab and then at an ATM machine during the time the crime was supposed to have happened.