California Law on Photographic Lineups
In many criminal cases, the District Attorney will attempt to admit at trial,
identification testimony from a witness to a crime, who has made an out-of-
court identification of the defendant. Typically, the testimony culminates in the
witness pointing to the defendant in court and identifying him or her as the
perpetrator. In Long Beach, the defendant in a criminal case may challenge
the admission of this testimony, claiming that the in-court identification was in
fact the result of a suggestive, prior, out-of-court identification, orchestrated
by law enforcement. The Fourteenth Amendment provides that no person
shall lose his or her life, liberty or property without due process of law. The
“Due Process Clause” protects a suspect from police identification
procedures that are so impermissibly suggestive as to create a very
substantial likelihood of irreparable misidentification.

A criminal defendant can challenge an identification by raising the issue of
impermissible suggestiveness. The suspect bears the burden of showing
that the identification procedure used was unreliable. If the requisite showing
is made, a hearing will be held, after which the judge will make a ruling
regarding the admissibility of testimony concerning the identification. To
determine which practices are so unfairly suggestive as to deprive a suspect
of Due Process, a court looks to the totality of the circumstances surrounding
the out-of-court identification. A
Long Beach criminal defense attorney can
file a motion to have illegally obtained or tainted evidence suppressed or
"thrown out" in Court.

For example, in the case of Grant v. City of Long Beach, 315 F.3d 1081
(2002),  (9th Cir. 2003), an array of six photos (a “six-pack”) was determined
to be unduly suggestive when a white suspect was pictured with five Hispanic
males; the suspect’s face appeared long and narrow while the other five men
pictured had rounder, fuller faces; and the suspect’s skin tone was
significantly lighter than four of the other five men.

At a minimum, the police officer conducting the photographic line up should
read the victim/witness an admonition as follows:

" In a moment, I will show you a number of photographs one at a time.  You
may take as much time as you need to look at each one of them.  You should
not conclude that the person who committed the crime is in the group merely
because a group of photographs is being shown to you.  The person who
committed the crime may or may not be in the group, and the mere display of
the photographs is not meant to suggest that our office believes the person
who committed the crime is in one of the photographs.  You are absolutely
not required to choose any of the photographs, and you should feel not
obligated to choose any one.  The photographs will be shown to you in
random order.  I am not in any way trying to influence your decision by the
order of the pictures presented.  Tell me immediately if you recognize the
person that committed the crime in one of the photographs.  All of the
photographs will be shown to you even if you select a photograph.

Please keep in mind that hairstyles, beards, and mustaches are easily
changed.  People gain and lose weight.  Also, photographs do not always
show the true complexion of a person.  It may be lighter or darker than shown
in the photograph.  If you select a photograph, please do not ask me whether
I agree with or support your selection.  It is your choice alone that counts.  
Please do not discuss whether selected a photograph with any other witness
who may be asked to look at these photographs. "

If you or a loved one has been the victim of improper Police practices or
have been implicated in a crime based solely on a photographic line up, call
us  we can help.  
Contact our office for a FREE INITIAL CASE
ASSESSMENT.

Legal References Provided by Lexis-Nexis
Criminal Defense Lawyer in Long Beach California