Flawed, Suggestive Photo Lineups Resulting in Eyewitness Misidentification and Wrongly Convicted

By: Houston Criminal Defense Attorney John T. Floyd and Paralegal Billy Sinclair


The Dallas Morning News (October 2008) ran two articles written by Steve McGonigle and Jennifer Emily that linked 19 DNA exonerations to faulty eyewitness testimony. These two investigative reporters opened their series with the tragic story of Wiley Fountain who spent 15 years in the Texas prison system wrongfully convicted of rape:


“Wiley Fountain was the obvious choice among the six Polaroids police assembled for the rape victim to review.

“He was the only man wearing a dark baseball cap and light-colored warm-up suit, similar to what the attacker had on. He fit the rapist’s description ‘to a T,’ a Dallas police officer later testified. The victim was sure. Prosecutors believed her. So did the jury. But all of them were wrong.


“In September 2002, after Mr. Fountain had spent 15 years in prison, DNA testing proved his innocence. Today, he is free but homeless, scrounging for aluminum cans on the rugged streets of South Dallas.


“The story of his wrongful conviction and that of 18 others is lifting the curtain on criminal justice in Dallas County, which has led the nation in DNA exonerations since 2001. In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their cases on eyewitness accounts, even though they knew such testimony can be fatally flawed.”

Since 1973 there have been 130 condemned inmates released from death rows in 26 states after having their innocence established. Most of those wrongful convictions were obtained through false eyewitness identification influenced by faulty photo lineups conducted by police. Nearly 60 percent of the more than 220 DNA exonerations in this nation since 1989 involved wrongful rape convictions – the vast majority involving African-American men convicted on the basis of white victim testimony.


In the State of Texas a criminal defendant can be convicted solely on the basis of the uncorroborated testimony of a sexual assault victim if the victim reports the assault to anyone other than the defendant within a year. See: Tex. Code Crim. Proc. art. 38.07 (Vernon Supp. 2004); Smith v. State, 2004 Tex.App. LEXIS 4487 (Tex.App.-Tyler May 12, 2004).


A long list of independent studies, including one by the U.S. Justice Department, have shown over the last two decades that in-court identifications by sexual assault victims are often tainted by a suggestive pre-trial photo lineup procedure. While the U.S. Supreme Court has held that an in-court identification is inadmissible if is unduly influenced by an improper pre-trial photo array, the test of whether to exclude the in-court identification is determined by the totality of the circumstances that must show “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See: Simmons v. United States, 390 U.S. 377, 384 (1968). See also: Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App. 1990), cert. denied, 499 U.S. 954 (1991).


Meeting that “impermissibly suggestive” burden is not easy. The Texas Court of Criminal Appeals has held that “reliability” plays a critical role in this process. See: Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). As the appeals court put it:


“If the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed reliable, ‘reliability [being] the linchpin in determining the admissibility of identification testimony.’” Id., [quoting Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988)].

Photo lineups are notoriously unreliable; leading to far more misidentifications than the justice system cares to admit. The Dallas Morning News reported that 75 percent of the 220 wrongful convictions exposed by DNA were the result of eyewitness misidentification. The newspaper discussed why many of the misidentifications were the result of suggestive photo lineup procedures:


“Typically, six mug-shot photos are arrayed in two rows of three for a victim to view. Dallas and many other police departments use computer programs to generate ‘filler’ photos for lineups based on general descriptions entered by a detective.


“As in Mr. Fountain’s case, questions persist about the fairness police officers demonstrated in obtaining identifications from photo lineups.


“Mr. Fountain’s photo was shown to the victim four hours after the rape. The case was marked ‘cleared’ by the lead detective the following day. The only other evidence presented at trial was a blood-typing test that concluded no living person could be eliminated as a suspect.


“A review of the photo lineups in the other DNA exonerations show that one wrongly convicted man from Dallas County was a former neighbor of the victim. Another worked at the same business. A third has the same name as a man the victim knew was a suspect. Four men were suspects in other unsolved crimes.


“All but one of the exonerated men had prior arrest records – and booking photos that could be used in lineups.

“The lead detectives were nearly all seasoned veterans. Two had two cases each with faulty photo identifications. Another had shown photo spreads in the Lenell Geter case, one of Dallas County’s most infamous wrongful convictions.


“Police insist that faulty identifications from photo lineups are almost always the result of human error, not intentional bad faith.


“’Everyone gets sloppy,’ said P.E. Jones, a retired Dallas robbery and homicide detective. ‘You think you have a slam-dunk case, and so you don’t go in there and dot your I’s and cross your T’s. And all of a sudden, it comes back to bite you.’

“Critics contend photo arrays are inherently vulnerable to manipulation: the detective’s body language, the instruction the witness receives, feedback provided by officers if an identification is made.


“’I call them misconduct identification,’ the Innocence Project’s Blackburn said. ‘I have yet to see one of these eyewitness IDs that goes wrong that didn’t have some element of deliberately suggestive behavior going on by the cops.’

“After one witness hesitated to identify exoneree Patrick Waller from a photo lineup, prosecution notes show, the lead detective pointed to Mr. Waller’s picture and said two other eyewitnesses had identified him. The witness remained uncertain and was not called to testify at trial. Mr. Waller spent 16 years in prison before DNA exonerated him in July. The real criminal later was imprisoned for burglary.


“Jim McCloskey, a nationally known prisoner rights’ advocate, said his investigations of wrongful convictions nationwide involve lineups that appear to be the result of police officers coaxing witnesses.


“’Who looks most similar to the suspect?’ said Mr. McCloskey, executive director of Centurion Ministries Inc. of Princeton, N.J. ‘These conversations go on, and they evolve until before you know it they have got themselves an ID. Now they’ve got the guy [witness] locked in, and he’s afraid to go back.’”


These revelations notwithstanding, it is virtually impossible to get a criminal conviction set aside based upon the most egregious suggestive procedures utilized by the police in a photo lineup. This reluctance by state appeal courts to find error can be traced by to the U.S. Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972) which set forth five non-exclusive factors that should be “weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances”:


1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’ degree of attention;
3. The accuracy of the witness’ prior description of the criminal;
4. The level of certainty demonstrated by the witness at the confrontation, and
5. The length of time between the crime and the confrontation.. . .

See also: Manson v. Brathwaite, 432 U.S. 98 (1977)


Just this year a Harris County appeals court in Sierra v. State, 2008 Tex.App. LEXIS 6417 (Tex.App.-Houston [1st Dist.] August 21, 2008) held that “even if [a photo lineup] was impermissibly suggestive, the lineup did not give rise to the substantial likelihood of irreparable misidentification when analyzed under the factors identified in [Neil v. Biggers].” Id., at Lexis 8. The Sierra court added:


”Appellant concedes that ‘the last two criteria admittedly weigh in favor of the admissibility of the identification in that Richard[s] testified he was positive that Appellant was the culprit when he viewed the photo spread the day after the incident.’ Richards’ testimony reflects that his identification of appellant was based on his own, independent recollection of what he saw on May 23, 2006, and that he had ample opportunity to observe appellant that day. Richards also described appellant as a Hispanic man, shorter than Richards, wearing a tank top, and with a shaved head and tattoos. Appellant contends that, ‘although this description matches Appellant’s characteristics, the description is hardly specific.’ Having considered the Biggers factors and all issues of historical fact–viewed deferentially in a light favorable to the trial court’s ruling and weighed de novo against ‘the corrupting effect’ of the allegedly suggestive pretrial identification procedure–we conclude that the trial court did not err in allowing the identification into evidence.” Id., at Lexis 8-9.


What this means quite simply is that if the trial court makes a determination that an in-court identification was not irreparably “corrupted” by a admittedly suggestive pre-trial photo lineup procedure, the Texas courts of appeal will not reverse that decision. They are constrained, both my judicial ideology and the Biggers factors, to reinforce the belief held by prosecutors and law enforcement officials that eyewitness testimony is virtually infallible.


“Eyewitness testimony [is] gold,” Assistant District Attorney Kevin Brooks told the Dallas Morning News. “If the witness said they saw it, they saw it.”


But that is not what the Morning News investigation uncovered. Given complete access to district attorney office files in the DNA cases by D.A. Craig Watkins, the newspaper discovered the following:


  • Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the case were all white, as were many of the juries of the 1980s.
  • Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.
  • Prosecutors frequently went to trial with single-witness identification and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.
  • Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.


Traditional law enforcement views that the “ends justifies the means” and the prosecutorial belief that “conviction” is king sent 19 innocent men to prison from Dallas County alone and another 17 elsewhere in Texas. It cost state and Dallas County taxpayers more than $3 million to incarcerate and then compensate these wrongfully convicted men. Dallas prosecutors said the problem began with faulty police investigations – and while that may have been the seed that produced the infected crop, prosecutors and judges share equal responsibility. Prosecutors knowingly suppressed evidence that supported innocence and judges too often rubber-stamped the rush to judgment tactics of prosecutors.


The concept of justice in this country has been replaced by political expediency. All one must do is watch the bevy of political ads currently airing on local television stations here in Harris County by criminal judges promising to protect the public from child sexual predators and civil judges promising to protect individual property rights to truly understand that justice no longer fits into the equation of a fair and impartial criminal justice system. Justice is no longer the noble objective. The justice system is now ruled by blind ambition and ruthless political power.


And defense attorneys are finding it increasingly more difficult to curb the abuses of due process and equal protection of the law. Some attorneys have actually given up, opting to find the fastest and most efficient way to resolve a case – even at the expense of their clients’ interests and innocence. The John T. Floyd Law Firm will always remain committed to such sacred constitutional notions as “presumption of innocence” and “proof beyond a reasonable doubt” as it endeavors to bring justice to its clients, even against all odds. That, after all, is the true function of the criminal defense attorney.

“It is better that ten guilty persons escape than one innocent suffer.”



‘Commentaries on the Laws of England’, iv.27, by Sir William Blackstone (1723-1780), a London-born jurist.