An eyewitness pointing to a suspect and saying, “That’s the person I saw,” can be powerful evidence in a criminal case. Unlike fingerprints, DNA, or digital records, however, eyewitness identification depends heavily on human perception and memory.
A witness may have seen an event for only a few seconds. Lighting may have been poor, stress may have been high, or significant time may have passed before police asked the witness to identify someone. The procedures used by investigators can also affect the reliability of an identification.
For defendants facing criminal charges in Los Angeles, these details matter. California law establishes specific procedures for photo and live lineups, while courts also consider whether an identification process was improperly suggestive and whether the resulting identification can be considered reliable.
How Eyewitness Identifications Are Used in Criminal Investigations
Eyewitness identification can take several forms.
A witness may be asked to examine a photographic lineup, view people in a live lineup, identify someone shortly after an incident during a field showup, or identify a defendant later in court.
Investigators may use identification evidence to help determine whom to investigate, support an arrest, connect a suspect to a crime scene, or provide evidence for prosecutors.
Sometimes the eyewitness identification is supported by surveillance footage, DNA, fingerprints, digital records, or other evidence. In other cases, the identification itself may become one of the central pieces of evidence linking a defendant to an alleged crime.
When identity is disputed, the circumstances surrounding that identification can therefore receive significant attention from both prosecutors and defense attorneys.
California Has Specific Rules for Photo and Live Lineups
California Penal Code Section 859.7 requires law enforcement agencies and prosecutorial entities to maintain procedures designed to improve the reliability and accuracy of eyewitness identifications conducted through photo and live lineups.
Among other requirements, California law generally calls for witnesses to provide a description of the perpetrator before the identification procedure and as close in time to the incident as possible. Photo and live lineups must also generally use blind or blinded administration, meaning the person conducting the procedure either does not know who the suspect is or does not know where the suspect appears in the lineup.
The purpose is straightforward: the administrator should not intentionally or unintentionally steer the witness toward a particular person.
Witnesses Must Be Warned That the Suspect May Not Be There
California’s lineup procedures also require witnesses to receive important instructions before attempting an identification.
A witness must generally be told that:
- The perpetrator may or may not be included in the lineup.
- The witness should not feel compelled to identify anyone.
- Making or failing to make an identification will not end the investigation.
California law also requires fillers in a lineup to generally fit the witness’s description of the perpetrator so that the suspected person does not improperly stand out. Only one suspected perpetrator should appear in each identification procedure.
These protections are designed to reduce pressure on the witness to select someone simply because police presented a group of photographs or individuals.
Blind and Blinded Lineups
One of California’s most significant safeguards involves who administers the lineup.
Under Penal Code Section 859.7, investigators generally must use either blind administration or blinded administration. In a blind lineup, the administrator does not know which individual is the suspect. In a blinded procedure, the administrator may know the suspect’s identity but uses a method that prevents the administrator from knowing which photo or individual the witness is viewing at a particular moment.
For example, photo lineups can be presented through a computer system or shuffled folders that prevent the administrator from tracking which photograph the witness is viewing.
The goal is to reduce the possibility of subtle influence.
Even an investigator who has no intention of directing a witness might react differently when the witness pauses on the suspect’s photograph. A blinded procedure helps prevent those cues from influencing the identification.
Police Should Not Confirm an Identification
What happens immediately after a witness chooses someone can also matter.
California law requires investigators to ask an identifying witness about their level of confidence and record the witness’s response in their own words. Officers generally should not tell the witness whether the person selected is actually the suspect before obtaining that confidence statement, and they should not validate or invalidate the witness’s choice.
That distinction can become important later.
Imagine that a witness initially says, “I think that’s him, but I’m not sure.” If an investigator responds by saying the witness chose the person police already suspected, that information could potentially strengthen the witness’s confidence.
By the time the case reaches trial months later, the witness may sound significantly more certain than they did during the original identification.
California’s current criminal jury instructions specifically recognize that an eyewitness’s expression of certainty may not necessarily be a reliable indicator of accuracy and allow jurors to consider whether information or police procedures may have increased a witness’s confidence.
Recording the Identification Procedure
California law generally requires photo and live identification procedures to be electronically recorded with both audio and video when feasible. If video recording is not feasible, an audio recording may be used, with investigators documenting why video was unavailable.
Recordings can become valuable evidence when the identification is later challenged.
Instead of relying entirely on a police report describing the lineup, attorneys and courts may be able to examine what instructions the witness actually received, how photographs were presented, what the witness said when making the identification, and whether anything occurred that could have influenced the result.
For a defense attorney reviewing an eyewitness identification in Los Angeles, the original recording may therefore be one of the most important pieces of evidence surrounding the procedure.
Field Showups Are Different From Traditional Lineups
Not every eyewitness identification involves six photographs or several people standing in a lineup.
Police sometimes conduct what California law calls a field showup. This generally occurs when officers detain someone shortly after a crime and bring a witness to determine whether that person was the perpetrator.
Penal Code Section 859.7 defines field showups separately and expressly states that its photo and live lineup requirements are not intended to govern field showup procedures.
A field identification can provide investigators with information quickly, but presenting a witness with one detained person can also raise different questions about suggestiveness.
An attorney examining a showup may look at how soon it occurred after the crime, what officers told the witness beforehand, how the suspect was presented, and what the witness said during the identification.
Suggestive Identification Procedures and Due Process
An identification procedure can raise constitutional concerns when law enforcement unnecessarily creates circumstances that strongly suggest which person the witness should select.
The U.S. Supreme Court has long examined whether police-arranged identification procedures created a substantial likelihood of misidentification.
In Neil v. Biggers, the Court identified several considerations relevant to determining the reliability of an identification, including the witness’s opportunity to view the perpetrator, degree of attention, accuracy of an earlier description, certainty at the identification, and the amount of time between the crime and the identification.
Later, in Manson v. Brathwaite, the Court emphasized that reliability remains central to determining whether identification evidence should be admitted despite a suggestive procedure.
A procedure being imperfect does not automatically mean the identification will be excluded. Courts consider the circumstances surrounding the identification and the applicable constitutional standards.
Police-Created Suggestiveness Matters
The Supreme Court clarified the role of police conduct in Perry v. New Hampshire.
The Court held that the Due Process Clause does not automatically require a judge to conduct a preliminary reliability review simply because an identification occurred under suggestive circumstances. Under federal due process law, that special pretrial screening generally applies when law enforcement arranged an identification procedure that was unnecessarily suggestive.
That distinction means an unreliable identification and an unconstitutional identification procedure are not necessarily the same thing.
Even when the Constitution does not require exclusion, however, the defense may still challenge the credibility and reliability of the identification before the jury through cross-examination, expert evidence where permitted, conflicting evidence, and California’s eyewitness identification jury instructions.
California Jurors Consider Multiple Identification Factors
California’s CALCRIM No. 315 provides jurors with factors they may consider when determining whether an eyewitness identification is reliable.
These considerations can include circumstances surrounding the witness’s observation, descriptions given before the identification, the passage of time, the identification procedure, and other factors affecting the witness’s ability to make an accurate identification.
Current California instructions also address witness confidence more carefully than earlier versions. Jurors may be instructed that certainty is not necessarily a reliable indicator of accuracy and may consider whether police procedures or later information increased the witness’s confidence.
Ultimately, prosecutors retain the burden of proving beyond a reasonable doubt that the defendant committed the charged crime.
Memory Can Change Over Time
Eyewitness evidence involves more than whether a person is being truthful.
A witness can sincerely believe an identification is correct and still be mistaken.
Memory is not necessarily a perfect recording that remains unchanged until someone decides to retrieve it. The original viewing conditions, passage of time, later conversations, photographs, news reports, repeated identification procedures, and information learned after the event can potentially affect what a witness remembers.
This is why the earliest description and initial confidence statement can be especially significant.
A defense attorney may compare what the witness said immediately after the incident with what the witness says weeks or months later. Differences between those accounts do not automatically prove an identification is incorrect, but they can become relevant when evaluating its reliability.
The Right to Counsel at Certain Live Lineups
Another issue can arise when a live lineup occurs after formal criminal proceedings have begun.
In United States v. Wade, the Supreme Court held that a post-indictment live lineup constituted a critical stage at which the accused was entitled to assistance of counsel under the Sixth Amendment. The Court recognized that improper influences during a lineup can be difficult to reconstruct later at trial.
That right does not extend in exactly the same way to every identification procedure. In United States v. Ash, the Supreme Court held that the Sixth Amendment does not give a defendant the same right to have counsel present when police conduct a photographic identification outside the defendant’s presence, even after indictment.
The type and timing of an identification procedure can therefore affect what constitutional protections apply.
Reviewing an Eyewitness Identification in a Los Angeles Criminal Case
When eyewitness identification plays a significant role in a Los Angeles prosecution, defense counsel may examine far more than whether the witness eventually pointed to the defendant.
Relevant evidence can include:
- The witness’s original description of the perpetrator
- Police body-worn camera footage
- 911 calls and recorded statements
- Photo lineup materials
- Live lineup documentation
- Audio and video recordings of the identification
- Instructions provided to the witness
- The appearance of lineup fillers
- The witness’s original confidence statement
- Statements made by investigators before or after the identification
- Earlier occasions when the witness did not identify the defendant
- The amount of time between the crime and identification
- Surveillance footage or physical evidence that supports or contradicts the identification
The goal is to reconstruct what the witness actually observed and how the identification developed from the initial incident through the criminal prosecution.
When Eyewitness Evidence Can Be Challenged
An eyewitness identification may be challenged in several ways depending on the circumstances.
The defense may argue that law enforcement used an unnecessarily suggestive identification procedure, question whether California lineup requirements were followed, cross-examine the witness about differences in descriptions or prior identifications, or introduce other evidence that conflicts with the witness’s account.
California Penal Code Section 859.7 does not itself make every identification automatically inadmissible when one of its procedures is not followed. The statute expressly states that it does not alter the constitutional standards governing admissibility.
That means the consequences of an identification problem depend on the particular violation, the surrounding circumstances, and the legal basis for the challenge.
Eyewitness Identification and Reasonable Doubt
When the identity of the person who committed a crime is disputed, eyewitness testimony may become central to whether prosecutors can satisfy their burden of proof.
California’s current eyewitness instruction concludes by reminding jurors that the prosecution must prove beyond a reasonable doubt that the defendant was the person who committed the crime.
That makes careful examination of eyewitness evidence particularly important when little independent evidence corroborates an identification.
A confident courtroom identification may be persuasive, but it does not eliminate questions about what the witness originally saw, how the suspect was presented, what the witness initially said, or whether later events influenced the witness’s memory.
Los Angeles Criminal Defense and Eyewitness Identification
An eyewitness identification can dramatically influence a criminal investigation, but identifying a suspect is a process rather than a single moment.
The witness’s original observations, the lineup procedure, statements by investigators, confidence levels, recordings, and other evidence can all help determine how much weight an identification should receive.
If eyewitness identification plays a major role in criminal charges against you in Los Angeles, Simmons & Wagner can review how the identification was conducted, examine the surrounding evidence, and determine whether there are grounds to challenge its reliability or admissibility.
Contact Simmons & Wagner to discuss your case and learn more about your legal options.]