26 September 2012

Line-ups: Are They Just Like in the Movies? And Am I Required to Participate in a Line-Up?


1995 Neo-Noir Film - photo credit: Gramercy Pictures
I don't know about you, but I find the tensest, most dramatic time of many a police thriller to be the scene where the fearful witness is squinting out of the gloom through one-way glass into a brightly lit box, set up like a carnival side-show, with a half dozen or so denizens of the underworld arrayed in front of a wall with height markings, each character shifting uncomfortably from foot to foot, side to side, arms fidgeting, heads trying to look anywhere than directly at the reflective glass wall in front of them.

Suddenly, over a tinny speaker set high in the ceiling, they hear an echoey, authoritative voice - a cop voice - call out: "NUMBER 5, STEP FORWARD. NUMBER 5. YES, YOU. MOVE IT. TURN TO THE RIGHT. OKAY, TURN TO THE LEFT. STEP BACK." 

This side show cast can hear murmurs of voices on the other side of the opaque glass, but not make out any words. All are desperate to return to their former activities. Some, awaiting release from the drunk tank. Others, a return to duty as undercover police officers. And one, to a segregated cell awaiting a final decision as to whether murder charges will be laid against him. 

Unlike some movie fantasies that have always been fantasies, the live line-up scene is grounded in recent past reality, with occasional gusts of current reality. 

What you need to know about movie-style line-ups is that they are unreliable, and possibly violate the protection against self-incrimination rights of suspects. That's why most police services have now moved to photo-pack line-ups. That way, no one is possibly coerced into participating in any activity other than posing for a photo when first arrested. And there are always lots more photos out there to draw upon in arranging a fair line-up of similar photos, than there will be live bodies available to stand beside the prime suspect awaiting identification in a live line-up.

Prior to the days of wide-spread photography live line-ups were the only investigative option. But today, there's really no excuse as to why fair photo line-ups aren't administered everywhere. 

Still, live-ups are not completely dead. And even photo line-ups can be contaminated by the person administering them consciously or unconsciously suggested the "correct" result to the witness reviewing the photos. That's why the even the person running the line-up shouldn't know which photo the police are focussed on. Just like drug studies where the doctors themselves don't know who is getting the placebo, and who is getting the real drug. 

Misidentification has time and time again been identified as the prime suspect in the majority of wrongful conviction cases. The police have always known that some evidence of i.d. greater than in-dock identification - the old, yes your honour, that man sitting over there in the locked courtroom box, wearing the handcuffs, I'm sure he did it, even though I only saw him for two or three seconds in a dark alley three years ago - and thus the line-up was born. 

The best identification evidence will always be that which carries with it a certain scientific weight which is not subject to the frailties of human memory, like DNA or fingerprint or other physical evidence. But human memory need not be completely discounted - its accuracy just needs to be sufficiently tested. Line-ups are a good test of memory, but only with photos, and only if properly arranged and administered. 

If you're ever asked to participate in a live line-up, you should speak to a lawyer first before agreeing to do so. Likely your lawyer will tell you what I tell my clients: don't do it. 

Do give the police your correct name, do pose for a photo, and do permit your fingerprints to be taken - these are usually all legal requirements if you are charged with a serious offence - but self-incrimination will never be a requirement. Sometimes there will be some benefit to telling your side of the story to the police, but there would never seem to be any benefit to going into a line-up. You run a great risk of being misidentified, and likely won't be set free simply because a single witness didn't pick you out from the bright lights and height markings. 

2 comments:

  1. Many years ago the Ontario Science Centre had an exhibit devoted to memory, and one display centered on a witness' ability to recall a crime accurately. Even after we told that we were about to see a crime take place (a fake purse-snatching on a video) it was almost impossible to accurately identify the suspect.

    It really struck me at that time that most people are probably not very good witnesses, because our memories are so fallible.

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