41N - Eyewitness identification Show Ups Photo Arrays 2019

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41N – Eyewitness Identification, Show-ups and Photo Arrays Policy & Procedure Page 2 of 18 It is the policy of the Lexington Police Department that: • The person subjected to the identification procedure is afforded his/her Sixth Amendment right to counsel, when required, and • When a witness makes identification, regardless of the identification method used, the officer should not convey to the witness that he/she has or has not identified the individual the officer believes is responsible for the crime. • The Due Process provisions of the Fifth and Fourteenth Amendments, which require identification procedures utilized by the police to comply with standards of fairness so as not to be unduly suggestive, will be followed. DEFINITIONS  Show-up: The presentation of one suspect to an eyewitness in a short time frame following the alleged commission of a crime.  Field Identification: When the police arrange for the witness to observe a group of individuals in a public place.  Photo Array: The showing of several photographs of different individuals to an eyewitness for the purpose of obtaining identification.  Lineup: The presentation of a number of individuals to an eyewitness for the purpose of obtaining identification.  Voice Lineup: The presentation of a number of individuals to a witness for the purpose of obtaining an identification of a suspect’s voice.  Mug shot: Photographic identification of a person’s face, typically from the top of the shoulders to the top of the subjects head. LEGAL CONCERNS A. Right to Counsel During Identification Procedure 1. The U.S. Supreme Court has determined that the right to counsel begins when any “adversarial judicial proceeding" has been initiated "whether commenced by way of formal charge, preliminary hearing, indictment, information, or arraignment." Thus, once a suspect has been arraigned or indicted, his/her right to have counsel present at any in-person identification procedure attaches. However, no right to the presence of counsel exists simply because a complaint has been filed, even if an arrest warrant has issued. 2. There is no requirement for an attorney to be present when identification in the field is made of a suspect who has been apprehended during the period immediately after the commission of a crime. 3. No right to counsel attaches to intangible identification procedures, such as those involving photographs or composite drawings, whether conducted before or after the initiation of adversarial criminal proceedings.