Academic journal article Boston College Law Review

Bare Necessity: Simplifying the Standard for Admitting Showup Identifications

Academic journal article Boston College Law Review

Bare Necessity: Simplifying the Standard for Admitting Showup Identifications

Article excerpt


On a June night in 1986, Gene Bibbins found a radio with a broken handle lying on the ground in his apartment complex in Baton Rouge, Louisiana.1 He picked it up and carried it with him until he was stopped by police several blocks away.2 The officers were looking for the perpetrator of a rape in the complex, and Bibbins resembled portions of the victim's description of her attacker.3 Worse yet, the radio that Bibbins held had been stolen from the victim's bedroom by her rapist.4

The police detained Bibbins and drove him to the victim's apartment for her to identify, where she viewed him as he sat handcuffed in the back of a police car, illuminated with a flashlight.5 When police asked whether Bibbins was her attacker, she said yes.6 The time elapsed between the assault and her identification of Bibbins was less than fifteen minutes.7 The police arrested him and sought no further evidence.8 Although Bibbins maintained his innocence, a jury convicted him at trial, and he was sentenced to life in prison.9 Gene Bibbins served sixteen years before finally being exonerated by DNA evidence in 2003, when he was in his forties.10

Courts have long known that witnesses mistakenly identify innocent people because of suggestive procedures.11 Half a century ago, the Supreme Court repeated the observation that suggestiveness during identifications is the leading cause of wrongful convictions and may even cause the majority of such failures.12 The introduction of DNA evidence in the late 1980s began a surge of exonerations that continues to build, suggesting that concerns over wrongful convictions are well founded.13

Subsequent research supports the Court's understanding: wrongful convictions often involve incorrect eyewitness identifications induced by suggestive police procedures.14 Out of the first 250 wrongfully convicted defendants exonerated using DNA, seventy-six percent were falsely identified by a witness, and seventy-eight percent of the false identifications that could be studied involved improper police procedures or suggestion.15

Displaying a photo array to a witness is cited as the most common identification procedure, but showups-wherein police display a single suspect to a witness-may be equally or even more common.16 Unlike lineups,17 showups are inherently suggestive and are criticized by scholars and courts because displaying a single person to a witness both suggests to the witness that the person is guilty and fails to test whether the witness can independently identify the person.18 Despite their suggestiveness, showups continue to be used be cause they may allow for the rapid identification of a dangerous perpetrator or quickly exonerate an innocent suspect.19

In an attempt to balance the utility and the dangers of suggestive identification procedures, the Supreme Court allows courts to admit an identification obtained through an unnecessarily suggestive police procedure but requires the exclusion of such an identification if a court finds it to be unreliable (defined as when the procedure created a "substantial likelihood of misidentification").20 This narrowly defined exclusion requirement stems from the Due Process Clause, and the Court has declined to require the exclusion of all identifications made under suggestive circumstances, or even all identifications likely to be incorrect.21 Courts normally characterize this inquiry as having two steps: (1) determining if a police procedure was unnecessarily suggestive and, if so, (2) progressing to an assessment of the identification's reliability.22 To facilitate analysis, this Note further divides the Supreme Court's rule into its four most elementary units; thus, in order for an identification to be excluded, the procedure used must have (1) been conducted by police, (2) been suggestive in nature, (3) been unnecessary, and (4) created a substantial likelihood that the defendant was misidentified.23 Adding to the complexity, the Court has provided a set of five reliability factors for judges to weigh when determining whether a procedure was substantially likely to result in misidentification. …

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