Admissibility of Unreliable Identification Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


According to the New York-based Innocence Project, 75 percent of the nation’s 273 DNA exonerations involved eyewitness misidentification—and according to Harris County state senator Rodney Ellis, a longtime advocate of eyewitness identification reform, 86 percent of Texas’ 45 DNA exonerations (the most in the nation) involved eyewitness misidentification. Eyewitness misidentification, and its link to wrongful convictions, has been explored several times by us on this site.


To say that the nation’s criminal justice system has a festering constitutional problem with eyewitness misidentification is putting the issue mildly. More than four decades ago the U.S. Supreme Court in a pair of cases, Wade v. United States and Gilbert v. California, announced the groundbreaking rule that post-indictment lineups are a “critical stage” of the criminal proceedings at which a defendant enjoys the right to counsel. The following year the Supreme Court in Simmons v. United Stateslineup evidence is inadmissible if it was unduly influenced by an improper pre-trial photo array and that the test for determining whether such a photo array was “impermissibly suggestive,” trial court would be guided by the “totality of the circumstances” surrounding the lineup. Four years later the Supreme Court, in Neil v. Biggers, once again entered the lineup fray by establishing five non-exclusive factors which  should be “weighed against the corrupting effect of any suggestive identification procedure in assessing [the] reliability [of a police lineup] under the totality of the circumstances.” Those factors are:


  • The opportunity of the witness to view the criminal at the time of the crime;
  • The witness’ degree of attention;
  • The accuracy of the witness’ prior description of the criminal;
  • The level of certainty demonstrated by the witness at the confrontation; and
  • The length of time between the crime and the confrontation.


In decades following the pronouncement of the Biggers factors, state and federal courts have carved out differing application of those factors. Some federal courts of appeal have held that due process is violated in all identifications made under suggestive circumstances while other courts, especially state courts, have held that due process is violated only if the suggestive circumstances were orchestrated by the police. The U.S. Supreme Court recently accepted a case from New Hampshire, Perry v. New Hampshire, to resolve this conflict among the courts. The facts and circumstances surrounding the identification procedures used in the Perry case were sufficiently outlined by his counsel in his brief before the New Hampshire Supreme Court who summarily denied Perry’s appeal without oral arguments relying solely on the Biggers factors. Perry sought, and secured, certiorari review before the U.S. Supreme Court on the question listed below:



“When a witness in a criminal case identifies a suspect out-of-court under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and subsequent in-court identification are reliable before either may be admitted into evidence. Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?”


While there is no way to predict what this Supreme Court will do, we agree, and hope the High Court will as well, that due process protects against all identifications made under “suggestive circumstances.” Texas recently joined a list of states which have implemented various “reforms” in police lineup procedures designed to prevent unreliable identification evidence from entering the courtroom, especially eyewitness misidentification. Texas’ lineup reform effort began, as we previously pointed out, in 2009 when our state legislature created the Timothy Cole Advisory Panel on Wrongful Convictions (“Panel”) and charged it with the responsibility of providing assistance and advice to the Task Force on Indigent Defense (“Task Force”) which had been charged with the responsibility of conducting a study designed to cover a broad array of issues relating to wrongful convictions. The study included the following areas:


  • The causes of wrongful convictions;
  • The procedures and programs that may be implemented to prevent future wrongful convictions;
  • The effects of state law on wrongful convictions, as determined based on state statues regarding eyewitness identification procedures, the recording of custodial interrogations, post-conviction DNA testing, and writs of habeas corpus based on relevant scientific evidence; and
  • Whether the creation of an innocence commission to investigate wrongful convictions would be appropriate.

On August 26, 2010 the Panel issued its “report” putting forth a comprehensive package of recommendations which, if implemented, will go a long way toward improving the quality and integrity of the Texas criminal justice system. Perhaps the most significant of these recommendations focuses on methods for improving the way more than 1,000 Texas law enforcement agencies prepare and administer eyewitness identification procedures. These methods include the following five proposals:

  • The State of Texas should require the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) to work with scientific experts in eyewitness memory research and law enforcement agencies to develop, adopt, disseminate to all law enforcement agencies, and annually review a model policy and training materials regarding administration of photo and live lineups. That model policy should comport with science in the areas of cautionary instructions, filler selection, double-blind administration, documentation of identification procedures, and other procedures or best practices supported by credible research.
  • The State of Texas should require all law enforcement agencies to adopt eyewitness identification procedures that comply with a model policy promulgated by the Bill Blackwood’s LEMIT.
  • The State of Texas should integrate training on eyewitness identification procedures into required curricula of the Bill Blackwood’s LEMIT and the Texas Commission on Law Enforcement Standards and Education (TCLOESE).
  • The State of Texas should permit evidence of compliance or noncompliance with the model policy to be admissible in court.
  • The State of Texas should allow law enforcement agencies discretion on the adoption of sequential procedures.


In the wake of the Panel’s recommendations, Sen. Rodney Ellis immediately introduced legislation designed to bring about the meaningful reforms in lineup procedures suggested by Panel, but which fell woefully short of its recommendations. Senate Bill 121 passed unanimously in the legislature on March 16, 2011, prompting Sen. Ellis to proclaim that the bill “took a very important step toward improving justice in Texas … It is the result of two years of cooperation with prosecutors, defense attorneys, law enforcement, members of the judiciary and the Governor’s office. It enacts a simple best practice to ensure we have reliable evidence in our courtroom to ensure the conviction of the guilty and the protection of the innocent.”


But not everyone was as enthused by the “reform” legislation, including us. The Austin Chronicle reported on May 11, 2011—two months after the legislation was enacted and just as the State of Texas recorded its 45th DNA exoneration, 39 of which involved mistaken identifications—that Senate Bill 121 “doesn’t actually represent any fix at all. The bill … requires police to adopt policies that reflect the ‘best practices’ but does not have any real enforcement provision. That is, even if a given agency doesn’t adopt a model policy, there is no punishment; moreover, there is no mechanism here to keep out of court, and out of evidence, any lineup conducted outside of the model policy.”


We agree with the Chronicle that Sen. Ellis’ bill notwithstanding, Texas will continue to record sad tales in its criminal justice system because far too many law enforcement agencies will continue to what they have always done: manipulate lineup procedures to identify the individual they are convinced committed the crime. We truly appreciate the efforts of Sen. Ellis, who has waged lineup reform battles since 2005, and others who voted for Senate Bill 121 (which becomes law September 1, 2012), but without any enforcement provisions, the bill will be a toothless tiger. At least if the Supreme Court attaches across the board due process protection to any lineup identification made under “suggestive circumstances,” there will be a meaningful and uniform enforcement mechanism that will grant trial courts the authority to suppress lineup procedures likely to have produced an unreliable identification.


It’s a shame that it took 39 wrongful convictions to bring about a measure of “reform” in the shameful arena of eyewitness misidentification—the most of any state in the nation—a reform which merely suggests that law enforcement agencies across the state act in a lawful, responsible manner when it comes to both crime detection and crime prevention. That is a “sad tale.”


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization