Raising the Standard of Evidence for Initiating an Identification Procedure

Abstract

How do police select suspects for witnesses to identify? There is currently no standard for the quantity of evidence required before investigators can order an identification procedure. Because eyewitness misidentification continues to be the leading cause of wrongful convictions, law and policy should guide police discretion at this investigatory stage by requiring detectives to show an evidentiary basis for placing suspects in lineups, showups, or photo arrays. The American Law Institute has proposed an addition to the Model Penal Code requiring police to have a strong basis in factual evidence before conducting identification procedures. The American Psychology-Law Society called for an evidence-based suspicion standard. Current law provides Fifth Amendment due process challenges to the suggestiveness of such procedures post hoc but does not address the reasons police may apply them to subjects ab initio, which is a Fourth Amendment concern. Reviewing Terry v. Ohio (1968), Justice Brennan’s dicta in Davis v. Mississippi (1969), and Maryland v. Buie (1990), this Article outlines Fourth Amendment-based arguments for developing a standard of evidence for initiating identification procedures, concluding that the reasonable suspicion standard of Terry is insufficient, and an articulable facts standard should be implemented.