Recently, one of the criminal defense attorneys at the O'Malley Law Office won a jury trial in Jefferson County. Our client was charged with Attempted Unlawful Sexual Contact, and he had been picked out of a photo lineup by the alleged victim. Shockingly, during the trial, she was unable to identify this same man in the courtroom. She looked right at him, and then told the jury and the District Attorney he wasn't in the courtroom. Even the judge was surprised – she had never seen such a thing happen in all her years as an attorney and judge. This trial was a wakeup call for us – we realized we needed to focus on the legitimacy of police photo lineups in Denver, Adams, and Jefferson County, and all across the metro area. What we found was surprising and enlightening. Let me share what we've learned.

Have you been picked out of a lineup?

How Photo Lineups are Conducted

There are two types of photo lineups traditionally used in Highlands Ranch, Aurora, and Littleton. These are simultaneous photo lineups, and sequential photo lineups. In recent years, the accuracy of these two types of identification have been called into question, and so a third has been introduced: The double-blind photo lineup. In each of the photo lineups, there are usually five “filler” people, and one suspect included in the lineup. Before a witness or alleged victim sees the lineup, a police officer or investigator will give instructions, which include the revelation that the suspect may or may not be present in the lineup. This instruction gives the witness the freedom to say they don't recognize anyone in the lineup.

1.

Simultaneous Photo Lineup

The simultaneous photo lineup is done by presenting all six of the people in the lineup at once to the witness. The problem with this process is that people have been known to compare each person to one another, and choosing the “best option,” instead of simply relying on memory.

2.

Sequential Photo Lineup

The sequential photo lineup is done by presenting each person in the lineup individually to the witness. The only problem with this process is that the police officer or investigator conducting the lineup often knows who the suspect is and gives subconscious clues to the witness.

3.

Double-Blind Photo Lineup

The double-blind photo lineup is done by presenting each person in the lineup individually to the witness, but the lineup is presented by an investigator unconnected to the case.  Because of their independence, the investigator will not offer any clues to the witness.

Problems with the Photo Lineup Process

In the past few years, there has been great debate regarding the accuracy of photo lineups in Douglas, Arapahoe, and El Paso County. This is why the double-blind photo lineup was introduced. Let's take a look at a few of the problems with photo lineup accuracy.

•  Comparison Choosing

When a simultaneous photo lineup is conducted, people tend to compare each person in the lineup with each other. They end up choosing the best one out of the group instead of relying on their memory. This comparison-choosing is called “relative judgment.” This is why sequential lineups were introduced – this way, a witness makes a decision about each individual photo according to their memory. This new process is called “absolute judgment.”

•  Subconscious Influence

People look to environmental clues when deciding how to act. This is part of what makes us human. Unfortunately, this comes into play in photo lineups. When an investigator knows who the suspect is in a lineup, they can influence the witness. This can be a conscious or unconscious choice. Small changes in the investigator's demeanor can trigger a reaction in a witness, such as a slight pause on the suspect's photo.

•  Physical Characteristics & Ethnicity

It can be difficult to choose five people to add to a photo lineup. If they don't look enough like the suspect, it can cause the accused to stand out. Also, research has been done which shows that people are better able to identify faces when they belong to the same race. If the suspect is a different race than the alleged victim, this can be a problem.

•  Memory Issues

There are many things which influence a person's memory. If a weapon, such as a gun or a knife was used in an incident, it will draw visual attention away from a person's face. This affects a witnesses' ability to correctly identify a suspect in a photo lineup.

Examples of Innocent People Picked in a Photo Lineup

There have been many innocent people who have been convicted only on the evidence of being picked out of a police photo lineup. Let's look at two cases which have been in the news.

Michael Phillips Convicted of Rape in False Identification

Michael Phillips was trying to turn his life around. He had been convicted of Burglary when he was 19, but was working hard as a maintenance man at a hotel to get back on track. This all changed when he was charged with rape. The young woman had been attacked in the middle of the night. She had picked Michael Phillips out of the lineup. Because he had a prior conviction, and because of his race, Mr. Phillip's public defender advised him to plead guilty. He spent 12 years wrongly imprisoned, and registered as a sex offender for 12 years before being exonerated by a DNA test. Another man at the motel complex had committed the rape.

Francisco Carrillo Convicted of Murder

Francisco Carrillo was only 16 when the police knocked down his door and ordered him to lay down on the ground. He had been picked out of a photo lineup by six witnesses. He spent the next 20 years in prison for a drive-by shooting he didn't commit. He was finally freed after the hard work of a public defender. The only connection he had with the crime was the photo lineup. After an investigation, it was discovered that a simultaneous lineup had been conducted. The first witness to see the photos was prompted to choose Carillo by the investigator, who wanted to close the case. The witness then went and informed the rest of the witnesses who he had chosen, before they did the lineup.

Why You Need an Experienced Criminal Defense Attorney

The police make mistakes

The police make mistakes. Procedures are flawed. Eyewitnesses forget key evidence. Because criminal cases can be messy, you need to have an advocate in court who can fight on your behalf and hold the judge and jury to a high standard. Don't stand alone before a judge and defend yourself, or work with a tired public defender. You need someone in the courtroom who will question police photo lineups and demand real evidence. You are in good hands with the attorneys at the O'Malley Law Office. We fight to win.

Get Help Now

If you or a loved one has been picked out of a photo lineup, be smart, exercise your right to remain silent, and contact an experienced criminal defense attorney at the O'Malley Law Office for a free consultation at 303-830-0880. Together, we will protect your future.Request a Free Consultation

Sources:

• National Institute of Justice
• National Public Radio
• New York Times
• Christian Science Monitor

Image courtesy of Idea go at FreeDigitalPhotos.net