California Law on Photographic Lineups

In many 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. The
defendant 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.

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 unduly suggestive when a Caucasian 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.

If you or a loved one has been the victim of improper Police
practices we can help.  Contact our office for a FREE INITIAL
CASE ASSESSMENT.

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