I watched Law & Order last night. One of the detectives acquired deceptively a yearbook from a high school so they could use it as a mugshot book of sorts to allow a witness to identify a boy who had vandalized her car. The lieutenant was making a big deal out of the possibility of the identification being thrown out. My question is: Huh? Why would it be thrown out? The boy willing had a photo done with the intent to have it published in a non-private publication (the yearbook). So, lawyers, give me the Straight Dope … was L&O out to lunch on this one, or is there some validity to this?
(I sent an email to my former students, lets see who answers first … my money is on the the TMs).
It’s not a matter of privacy or anything like that. It’s a matter of whether the identification is “unduly suggestive” of the person the police suspect.
Photo lineups done by police are subject to considerable scrutiny by the courts, because the police have the ability to manipulate the photos to achieve the result they want. Usually, these are done when the police have a suspect in mind and have some basic identifying details from an eyewitness.
The problem is that the police, having a suspect in mind, want the witness to i.d. their guy. They may do so by presenting photos of other individuals who bear no resemblence to the suspect (as you might typically get in a high school yearbook), so that the witness need merely pick out the one person who looks “closest” to the person they saw, rather than picking a person out of a group of similar looking people because they are certain that he is the perpetrator. And, of course, there are problems with the manner in which the police conduct the lineup, such as asking the person to review a certain photos again if they miss the suspect the first time.
Consequently, courts are highly suspicious of these sorts of identifications, and allow testimony that the witness identified the suspect out of a photo array with some reluctance. In the identification is not done in highly controlled conditions, the court will happily exclude it. (There’s not much prejudice involved-- the witness can always take the stand and testify whether they can identify the defendant as the perpetrator.)
So, long story short, it’s probably likely that a court would throw out a photo i.d. done just by perusing a yearbook, because the photos in the array are not controlled well.
I think Law and Order got the idea, as they often do, from the news here in New York.
A year or two ago, there was a bit of a scandal that the NYPD had begun collecting yearbooks from all of the city high schools to use for identifications. It turned out that the police had previously gotten yearbooks from schools to use in specific cases, but hadn’t had a specific program. When someone got the idea that they should formalize this, the word got out, people objected, and the plan was dropped.