611 – Eyewitness Identification
I. Purpose
Eyewitness identification is a frequently used investigative tool. This policy establishes the Harris County Sheriff’s Office (HCSO) guidelines for photographic line-up, field identification, and live line-up procedures.
II. Definitions
Administrator: The person charged with presenting a photographic line-up to a witness. The administrator may be the lead investigator or his or her designee.
Blind Administrator: An administrator who does not know the identity of the suspect or the suspect’s position in the photographic or live line-up.
Blind Manner: The presentation of a photographic line-up by either a blind administrator or a blinded administrator.
Blinded Administrator: An administrator who may know the identity of the suspect but does not know the suspect’s position in the photographic line-up.
Field Identification: The presentation of a suspect to a witness following the commission of a crime for the purpose of identifying or eliminating a possible suspect.
Fillers: The photographs used in a photographic line-up, or subjects used in a live line-up, whose race, sex, age, height, weight, hair style, and general appearance resemble the suspect.
Folder Method: A photographic line-up, placed in separate folders or in an envelope, which is given to the administrator for presentation to the witness in a blind manner.
Lead Investigator: The officer primarily responsible for investigating an incident.
Live Line-up: The presentation of persons to a witness for the purpose of identifying or eliminating a suspect or suspects.
Mock Line-up: A line-up procedure, conducted without the presence of witnesses which is video-recorded for witness viewing at a later time.
Photographic Array: A collection of photographs, including a suspect photograph and filler photographs placed in random order, which is shown to a witness for the purpose of identifying or eliminating suspects.
Sequential Viewing: An identification procedure where photographs are shown one at a time to a witness.
Shuffled Line-up: A photographic line-up where the suspect and filler photograph positions have been randomly shuffled.
Simultaneous Viewing: An identification procedure where all photographs or line-up participants are shown at the same time to a witness.
Suspect: A person who has been specifically identified by the investigation as possibly being the person who committed the crime.
Witness: A term referring to a complainant, victim, eyewitness, or any other form of witness to an incident.
III. Policy
This policy is designed to maximize the reliability of identifications and to establish evidence that is reliable and conforms to established legal procedures. The procedures in this policy are applicable when a person is known to an investigator and is suspected of criminal involvement in the incident under investigation. Not all investigative circumstances can be anticipated; therefore, any variation from this policy must be preapproved by the investigative supervisor and documented in a supplement report
IV. Procedure Photographic Arrays
A. A photographic array will be shown to a witness utilizing either a blinded or blind administrator.
B. A photographic array may be presented utilizing either simultaneous viewing (i.e., six photograph photo array) or sequential viewing (i.e., six individual photographs placed in individual folders or envelopes). The method used should be documented in a supplement report.
C. The lead investigator may conduct a photographic array as a blinded administrator if:
1. The investigator utilizes the folder method with simultaneous viewing and has created a minimum of two shuffled line-ups, rendering the investigator unaware of the suspect’s position in the line-up when it is viewed by the witness.
2. The investigator utilizes the folder method with sequential viewing and has shuffled the folders, rendering the investigator unaware of the suspect’s position in the line-up when it is presented to the witness.
D. Lead Investigator or Designee Responsibilities:
1. Preparation of the photographic array, including selection of the fillers and ensuring each of the photographs are numbered or lettered for later reference.
a. The investigator creating the photographic array for simultaneous viewing will use the same photographs to produce as many additional arrays as needed for multiple witnesses.
i. If the photographic array will be shown to multiple witnesses, a minimum of two shuffled arrays should be created to ensure the suspect’s position remains unknown to the administrator.
ii. The arrays will be assembled using the folder method and given to the administrator for presentation to the witness.
b. The investigator creating the photographic array for sequential viewing will use the same photographs and produce as many copies as needed for multiple witnesses. The photographs will be assembled using the folder method and given to the administrator for presentation to the witness.
2. When preparing the photographic array, the lead investigator or designee should:
a. Utilize the Automated Fingerprint Identification System (AFIS) Mug Shot Database to compile the photographic array. If a mug shot photograph is not available, a driver’s license photograph or another known photograph of the suspect may be used. In the event the suspect photograph is obtained from a source other than AFIS, the filler photographs should be obtained from a similar medium.
b. If there is more than one suspect, only use one suspect in each photographic array.
c. Select fillers that are the same race, sex, and reasonably similar in age, height, weight, and general appearance of the suspect. Avoid using fillers that so closely resemble the suspect that a person familiar with the suspect might find it difficult to distinguish the suspect from the fillers.
d. Include a minimum of five fillers per identification procedure.
e. Do not reuse fillers in line-ups shown to the same witness if showing a new suspect.
f. Ensure that no markings other than identification numbers are visible to the witness. Do not mix color photos with black-and-white photos,
g. Use photos of the same size and basic composition. Mug shots should not be mixed with other photos. If mug shots will be used, cover any portions that provide identifying information about the subject.
h. All persons in the photographic array or the origin of the photos should be known to the investigator, if possible.
i. Photos should be reasonably contemporary.
j. Do not use more than one photo of the same suspect.
k. When practicable, all photo backgrounds should be similar. If photos with similar backgrounds are not available, the backgrounds should be sufficiently diverse so as not to draw undue attention to a particular photo or suspect.
l. Review the array to ensure that the suspect does not unduly stand out.
m. When the photographic array is completed utilizing the folder method, the photographic array folders containing all documents will be given to the administrator.
E. Presentation of Photographic Arrays:
1. The administrator will determine, before any presentation is made, if the witness is deaf, illiterate, or has limited English proficiency. If the witness is deaf, illiterate, non-English speaking, or has limited English proficiency, the investigator will arrange for assistance to translate the photographic array or live line-up form into the language of the witness or otherwise assist the witness in understanding the instructions before proceeding. The identification of the assisting person and the assistance provided will be documented.
2. Photographic arrays will be shown to witnesses using a blind or blinded administrator.
3. The administrator will not make any suggestive statements or take any other actions that may influence the judgment or perception of the witness.
4. Prior to beginning the presentation, the administrator should determine if the witness has seen the suspect at any time since the offense occurred (whether in person or any type of media). If so, the administrator will document the information in a supplement report.
5. Provide the witness with an “Instructions for Viewing a Photographic Array” form (see attachment for example), and instruct the witness to read the top section in its entirety.
a. Review the instructions and admonitions with the witness to ensure he or she understands the instructions.
b. Obtain the witness’ signature indicating he or she understands the procedure, and sign the form as the line-up administrator.
6. The administrator will position him- or herself so he or she cannot see the photographs while the witness is viewing the photographic array.
7. Show the witness the photographic array utilizing the applicable method for either simultaneous or sequential viewing.
8. After the witness has viewed the entire photographic array, ask the witness if he or she recognizes anyone in the array.
9. If the witness identifies a suspect among the computer-generated, printed photographic array or individual computer-generated photographs, have the witness place his or her name, date, and time on the original document he or she viewed, confirming his or her identification. If using original photographs in a six person show-up folder or individual original photographs, provide the witness with a photocopy of the show-up folder or photograph and follow the same procedure.
10. Complete the lower portion of the photographic line-up form, and ask the witness to describe, in his or her own words, his or her level of confidence regarding the identification or non-identification of the suspect. If the witness identified a suspect, ask him or her for a brief description of what actions he or she witnessed the suspect commit. Have the witness complete and sign the appropriate portion of the form.
11. Do not provide any feedback to the witness regarding the identification process.
12. The presentation of a photographic array may be video or audio recorded.
13. The administrator will complete a supplement on the identification procedure and scan, in color, all files, photographs, and forms into the e-files section of the supplement as PDF files. The original documents will be returned to the lead investigator.
F. Administrator Responsibilities:
1. Ensure the photographic array is presented in a manner consistent with this policy.
2. Whether the photographic array viewing results in a positive or negative identification, the administrator will enter a supplement report detailing the line-up procedure and any statements, gestures, or reactions by the witness. When practicable, a copy of the photographic array, photographic array instruction form, and any other related documents should be scanned as color PDF files and entered into the e-files section of the supplement.
3. Return all photographic array materials and documentation to the lead investigator.
V. Procedure – Live Line-up and Video Line-up
Live line-ups will utilize the blind administrator procedure.
A. Line-Up Coordinator:
1. The line-up coordinator is the liaison between the investigators and the Criminal Justice Command. The coordinator will assist the investigator in the selection of fillers from the jail inmate population, ensure any suspects in HCSO custody are present for the line-up, and facilitate the line-up process.
2. The line-up coordinator will video-record all line-ups. The video recording is evidence and will be released to the lead investigator or designee. The lead investigator will adhere to the evidence procedures outlined in HCSO Policy #605, “Storage of Evidence and In-Custody Property.”
B. Suspect Rights:
1. A suspect who is charged in the case under investigation has the right to be represented by an attorney at a live line-up. The suspect may waive the right to counsel by signing a written waiver (see attachment for example).
2. If the charged suspect is represented by an attorney and does not wish to waive his or her right to counsel, the lead investigator will give the suspect sufficient notice of the date, time, and location of the live line-up so his or her attorney may attend the viewing.
3. If the charged suspect has not appeared in court, has not been issued a court-appointed attorney, and does not waive his or her right to counsel, the lead investigator will contact the District Attorney’s Office to facilitate a court-appointed attorney prior to conducting the live line-up.
4. A suspect does not have a right to an attorney when:
a. The suspect is not charged in the case being investigated,
b. The suspect was arrested on a probable cause warrant (i.e., pocket warrant) and is being placed in the line-up, or
c. The suspect is being placed in a mock line-up for video recording purposes, and no witnesses are present.
C. Procedures for Illiterate or Limited-English Witnesses:
The investigator will determine, before any presentation is made, if the witness is deaf, illiterate, or has limited English proficiency. If the witness is deaf, illiterate, non-English speaking, or has limited English proficiency, the investigator will arrange for assistance to translate the live or video line-up form into the language of the witness or otherwise assist the witness in understanding the instructions before proceeding. The identification of the assisting person and the assistance provided will be documented.
D. Preparation:
The lead investigator or designee will work with the line-up coordinator to prepare the line-up. The investigator who assists in the selection of fillers and the preparation of the line-up should be familiar with the case under investigation and may not administer the live line-up.
1. Select fillers that are the same race, sex, and reasonably similar in age, height, weight, and general appearance of the suspect. Avoid using fillers that so closely resemble the suspect that a person familiar with the suspect might find it difficult to distinguish the suspect from the fillers.
2. The suspect and all fillers will be wearing the same attire: HCSO-issued shirt, pants, and wristband.
3. The HCSO line-up room is designed for a total of five subjects: the suspect and four fillers.
4. If defense counsel is present, allow counsel to choose the suspect’s position in the line-up. If counsel is not present, allow the suspect to choose his or her position. As a general rule, try not to place the suspect in position #1.
5. Present the ordered line-up to the administrator. The administrator should not be told which position the suspect is in.
E. Administration:
The live line-up will utilize a blind administrator. With the exception of defense counsel and the line-up coordinator, no one should be present in the witness viewing area who knows the suspect’s identity or position. Once the live line-up commences, defense counsel’s role is limited to that of observer and the line-up coordinator to that of video recorder operator. If the same live line-up will be presented to multiple witnesses, then those witnesses should be segregated before and during the administration of the identification process.
1. The administrator will instruct the witnesses not to speak or otherwise communicate with each other regarding the viewing.
2. Outside the presence of the other witnesses, the administrator will provide the witness with a copy of the “Instructions for Viewing a Live or Video Line-up” form (see attachment for example). The administrator will instruct the witness to read the top section of the form in its entirety.
a. The administrator will review the instructions and admonitions with the witness to ensure his or her understanding.
b. The administrator should obtain the witness’ signature indicating he or she understands the instructions and sign the form as the line-up administrator.
F. Presentation of Subjects:
All subjects who are participating in the live line-up should be standing in order at the entrance door on the detention side of the line-up room. Over the intercom, the administrator will direct the line-up subjects to:
1. Enter the line-up room in single-file order and stand face-forward in their designated numbered spaces.
2. Beginning with subject #1, direct the subject as follows:
“Take one step forward.” (pause)
“Turn to the right.” (pause)
“Turn to the right and face the rear wall.” (pause)
“Turn to the right.” (pause)
“Turn to the right and face forward.” (pause)
“Step back into the line.”
Repeat the exact same instructions for all five subjects even if the witness indicates he or she recognizes the suspect.
3. If the lead investigator has requested that the line-up subjects speak a particular phrase, a printed card will be provided. The administrator will direct each subject to recite the phrase from the card.
G. Questioning of the Witness:
1. After the witness has viewed all five subjects, ask the witness if he or she recognizes anyone in the line-up.
a. Do not give the witness any feedback regarding the person selected or comment on the outcome of the identification procedure in any way.
b. Complete the lower portion of the “Instructions for Viewing a Live or Video Line-up” form.
c. If the identification was negative, have the witness complete and sign the appropriate portion of the form, and sign the form as the administrator.
d. If the identification is positive, ask the witness to describe, in his or her own words, his or her level of confidence regarding the identification of the suspect. Ask him or her for a brief description of what act he or she witnessed the suspect commit. Have the witness complete and sign the appropriate portion of the form.
• If identification is made, a follow-up interview should assess any relevant factors that support the identification, such as: special facial features, hair, marks, etc.
2. If the witness requests an additional viewing, the administrator should present the entire live line-up a second time. Recommendation: The witness should not be allowed to view the live line-up more than two times.
3. When there are multiple suspects, a separate live line-up should be conducted for each suspect. There should not be more than one suspect per line-up.
• Do not reuse the same fillers from a previous line-up shown to the same witness.
4. To the extent possible, prevent witnesses from conferring with each other before, during, and after the live line-up procedure.
5. Take precautions to ensure that witnesses do not encounter suspects or fillers at any time before or after the identification procedure.
H. Documentation:
1. Live line-ups will be documented in full. Video documentation (with audio) is the preferred method. Audio recording is the preferred alternative. If neither method is employed, then the reason for not video or audio recording should be documented.
2. A still photograph of each subject in the live line-up should be taken, and details of all persons present during the live line-up should be documented.
3. In all cases, the administrator will:
a. Supplement the original report with the details of the line-up presentation process and results.
b. Scan all original documents in color as PDF files, and attach the documents to the e-files section of the supplement report.
c. Release any video or audio recordings, photographs, and original documents to the lead investigator.
VI. Procedure – Field Identification
The use of field identification should be avoided whenever possible in preference for the use of a photographic or live line-up. If there is some question regarding whether a person stopped in the field may be the right suspect, an attempt at field identification may prevent the arrest of an innocent person. Therefore, when circumstances require the use of field identification, the following guidelines should be followed:
A. Procedures for Using Field Identifications:
1. Supervisory approval should be obtained prior to any field identification. The deputy is responsible for ensuring the witness is able to understand the instructions given. If the witness is deaf, illiterate, or has limited English proficiency, the deputy will provide for an interpreter or other assistance. Otherwise, the deputy will not continue with the field identification.
2. Single suspect field identification will not be used if there is adequate probable cause to arrest the suspect.
3. A complete description of the suspect should be obtained from the witness prior to conducting a field identification. If the witness indicates he or she is unsure if he or she can identify the subject, a field identification will not be administered.
4. Whenever possible, the witness should be transported to the location of the suspect rather than bringing the suspect to the witness.
5. Field identifications should not be attempted more than two hours after the commission of a crime.
6. Field identification should only be conducted with one witness present at a time. If the field identification is conducted for more than one witness, it should be done separately. If one witness positively identifies the subject, consider making an arrest and using the above photographic line-up procedures for other witnesses.
7. The same suspect should not be presented to the same witness more than once in either field or photographic line-ups.
8. Field identification suspects should not be required to put on clothing worn by the perpetrator, to speak words uttered by the perpetrator, or to perform other actions of the perpetrator.
9. Words or conduct of any type by deputies that may suggest to the witness that the subject is or may be the perpetrator will be avoided.
B. Documentation of Field Identifications:
1. If the witness identifies the suspect, have the witness express his or her level of confidence in his or her own words regarding the identification or non-identification of the suspect. If the witness positively identifies the suspect, ask him or her for a brief description of what actions he or she witnessed the suspect commit.
2. The deputy conducting the field identification should use the field identification form to inform the witness of the procedure and obtain evidence of his or her understanding of the procedure.
3. If a patrol vehicle with video or audio capabilities is available, it may be used to record the witness’ viewing of possible suspects using the car video and audio recording system. It may also be used to document the witness’ comments regarding the suspect on the field identification form. The form will be given to the lead investigator, who will include it in the original case report. The video or audio recording will be downloaded and placed into evidence.
Revision
This policy has been revised on the below listed dates:
October 29, 2012
May 21, 2021