The Psychology of Pretrial Identification Procedures: The Showup Is Showing out and Undermining the Criminal Justice System

Agricola, Barbara H., Law and Psychology Review

I. INTRODUCTION

Over the last century, scholars have studied the relevance of psychological influences and their growing presence in the legal context, specifically in criminal law. As a result, the areas of eyewitness identification, trial testimony, and jury awareness have received heavy examination. Pre-trial identification procedures have come under scrutiny based on psychological factors and constitutional issues that often arise, and remain to be a topic of interest among legal and psychology scholars. While the commonly used lineup procedure has received much attention, researchers have not been as generous to the showup procedure commonly used by police. This note will first examine the historical background of lineup (1) and showup (2) procedures to date through a review of the Supreme Court's jurisprudence on showup procedures. (3) Specifically, the analyses and arguments of this note will address the psychological relevance of pre-trial, showup identifications through the following: a) the inherently suggestive nature of showup procedures; b) the psychological effect of eyewitness identifications on the jury; and c) the constitutional implications as a result of showup identification. Further, recommendations to the judicial community will be made along with suggested legislative reforms and policies that will, if implemented, alleviate the many problems associated with showup identification procedures.

II. SUPREME COURT JURISPRUDENCE--THE WADE TRILOGY

In 1967, the United States Supreme Court first discussed the problems associated with eyewitness identification procedures in three landmark cases: United States v. Wade, (4) Gilbert v. California, (5) and Stovall v. Denno. (6) The Court's main focus was confronting the "dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification." (7) They were primarily concerned about the high occurrence of misidentification by eyewitnesses as a result of deliberate or accidental suggestion during lineups and showups. (8)

The first two cases, Wade and Gilbert, involved post-indictment, pretrial lineups wherein the Supreme Court found that such a lineup conducted without counsel present and without a waiver of the right to counsel violated a defendant's Sixth Amendment right to counsel. (9) The lineup was deemed a "critical stage" where Sixth Amendment protection applied; (10) however, the assessment of the "critical stage" posed some ambiguities for subsequent case law. (11)

The third case of the Wade Trilogy, Stovall v. Denno, involved a showup. (12) Here, the Court dealt with a defendant's general due process protection, recognizing that a pretrial identification procedure that is so unnecessarily suggestive and conducive to irreparable misidentification that it denies the defendant due process of law is constitutionally impermissible. (13) The Court observed, "[i]t is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police," when describing the showup that took place in Stovall. (14)

Five years after the Wade Trilogy, the Supreme Court moved backwards with its decision in Kirby v. Illinois. (15) In Kirby, the question remained whether the defendant had the right to counsel at the showup. (16) The defendant had been arrested but judicial proceedings had not been initiated. (17) The Kirby Court limited the Wade principle strictly to its facts --post-indictment lineups--in determining the "critical stage" standard, and concluded that the defendant in Kirby did not have a right to counsel because he had not yet been indicted. (18) Importantly, the Wade Court, in defining the lineup procedure as a critical stage, expressly relied on Escobedo v. Illinois, (19) which involved the right to counsel before arraignment. (20) Thus, the Kirby Court created a loophole for police manipulation by allowing unfair pretrial identifications and all such procedures before the indictment, defeating the intentions of the Wade and Gilbert rulings. (21)

While the benchmark cases initially provided a glimmer of hope for correcting the many problems of pretrial identification procedures, the recent Supreme Court jurisprudence has failed on almost all accounts, dismantling many of the protections it sought to safeguard. This note argues against suggestive pretrial identification procedures that eradicate the very basic rights that our country's founders fought to establish. Further, it should serve as a reminder of the historical relevance of our country's foundation, and highlight the fact that the seemingly archaic notion of the dangers of basic rights deprivation is, unfortunately, still ever present and looming.

III. INHERENT SUGGESTIVENESS OF THE SHOWUP

According to recent studies, 40% of eyewitness identifications are incorrect. (22) Further, there is much evidence to support that showup misidentifications are more prevalent than in any other pretrial misidentification procedure. (23) A showup can occur at any number of places and has no specific location restrictions. It could happen anywhere--in the "field," at the police station, at the scene of the crime, at the hospital if the witness/victim is dying, etc. (24) While there may be exigent circumstances warranting the expedition of eyewitness identification by using a showup procedure, the absence of such immediacy significantly reduces the reliability of the identification and there are few protections to limit the devastating effects of the suggestiveness of the showup procedure. (25) Showups can be necessary but even in such circumstances police should only employ them …

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Publication information: Article title: The Psychology of Pretrial Identification Procedures: The Showup Is Showing out and Undermining the Criminal Justice System. Contributors: Agricola, Barbara H. - Author. Journal title: Law and Psychology Review. Volume: 33. Issue: 0 Publication date: Annual 2009. Page number: 125+. © 2008 The Law & Psychology Review. COPYRIGHT 2009 Gale Group.

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