• For information about the admissibility of evidence of out-of-court identifications in lineups, please review Admissibility.
Suggestivity in lineups: Words and actions
• With regard to lineups, we believe that suggestivity may be evidenced by overt words or actions; for example, where the police ask the viewer if the third person from the left isn’t the one who committed the act.
• For more information about suggestivity caused by words, please review Link to slide 350, titled “Comments by Police to Identification Witness”
Suggestivity in lineups: Assumptions by the identification witness
• Prior to the lineup, the witness . . . did assume that the suspects would be among those exhibited. However, such an assumption by the witness, without more, has been held not to make a lineup so suggestive as to deny due process.
Suggestivity in lineups: Brevity
• [I]n the absence of other proof of suggestivity . . . we see nothing inherently violative of due process in a lineup which takes but five minutes.
Suggestivity in lineups: Hairstyle
• Distinctiveness of hair style is not necessarily unconstitutionally suggestive.
See Little v. State, 475 N.E.2d 677,682 (Ind. 1985)(citing Fields v. State, 333 N.E.2d 742, 744 (Ind. 1975))(“Distinctiveness of hairstyle has been held to be not necessarily unconstitutionally suggestive.”)
• [D]istinctiveness of hairstyle is only one of a number of factors to be considered regarding the identification.
See also Bennett v. State, 416 N.E.2d 1307, 1310 (Ind. Ct. App. 1981)(citing Fields v. State, 333 N.E.2d 742, 744 (Ind. 1975))(“Distinctiveness of hair style is only one of a number of factors to be considered in a pre- trial identification procedure.”)
• The most suggestive aspect of the lineup was [the defendant’s] hair style. He was the only one of the six men in the lineup with braided hair, and one of the abductors had had this hair style. It is apparent that this was at least of some importance in [the witness’s] ability to identify him. Distinctiveness of hair style, however, has been held to be not necessarily unconstitutionally suggestive. In these cases, distinctiveness of hair style was offset by other factors, the number of witnesses[,] or similarities among those in the lineup as to other features.
Suggestivity in lineups: Skin color
• A claim of suggestiveness based on differing skin color will succeed only where there is a marked difference in the color of the defendant as compared to the others within the lineup which would give rise to a very substantial likelihood of irreparable misidentification.
• Improper suggestivity may . . . be evidenced by the composition of the lineup itself, as where the members of the lineup are all of one race and the accused is of another.
Suggestivity in lineups: Number of participants
• It is true that a line-up of only three or four persons is generally considered inadequate. A line-up of at least five or six persons is recommended. Depending upon the surrounding circumstances, however, identification of an individual in a line-up of less than five or six does not render the testimony regarding this identification inadmissible per se.
Patterson v. State, 386 N.E.2d 936, 940 (Ind. 1979), reh’g denied, cert. denied, 444 U.S. 935 (1979)(citing Tewell v. State, 339 N.E.2d 792, 799 (Ind. 1976))(“[L]ineups of three or four individuals are not generally considered adequate.”)
Cooperation of the defendant
• Our decisions reveal that we have upheld pre-trial identification procedures where the defendant was not aware that a witness observed him ... . And we have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. Thus, the police may conduct a line-up without the cooperation of the defendant.