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FDLE Introduces New Eyewitness Identification Guidelines

Recently, the Florida Department of Law Enforcement (FDLE) released new guidelines for law enforcement agencies to follow when attempting to collect eyewitness identifications in criminal cases.

Many cases are put together due to eyewitness identification. That is, an alleged eyewitness to a crime attempts to identify the person or persons they claim are responsible for the commission of the crime. However, eyewitness identification is some of the most unreliable evidence there is. And what's troubling is that countless people are convicted on a regular basis due to eyewitness identification.

Eyewitness accounts of crimes and those who commit them are subject to many factors. That's what a criminal defense attorney does when an alleged eyewitness takes the stand. We cross-examine them on the details of what they saw. How far away were they? What was the lighting like? How long did they look at the accused? Was the accused wearing anything that partially covered his or her face?

In a state of panic - and let's be honest, folks, witnessing a crime is cause for panic - certain physiological reactions begin to take place. Out heartbeats elevate, our breathing becomes labored. As we panic, our minds may be more focused on fleeing the dangerous situation than the details one is observing. For that reason, it is very difficult to get a good look at somebody in that heightened state of fear. And what's also true is that many supposed eyewitnesses don't see the person committing the crime for more than a few seconds.

Police officers, in their efforts to catch criminals, may suggest (even without knowing it) who the suspect is when having an eyewitness look at a photo or live lineup.

To prevent erroneous convictions, FDLE has stated the following:

"The collection of reliable eyewitness identification evidence and the avoidance of erroneous eyewitness identification evidence are essential in assuring that justice is obtained in our criminal justice system. Current studies have not conclusively established that either of the two popular methods of photographic or live eyewitness identification (simultaneous or sequential presentation) is superior to the other. However, Any eyewitness identification method can include safeguards to minimize the possibility of erroneous identification. These Standards identify the key factors that an agency’s eyewitness identification policy should consider and are intended to promote consistency in how an agency’s investigators deal with photographic or live lineups."

Furthermore, FDLE has asked law enforcement agencies to implement the following guidelines with regard to eyewitness identification:

1. An agency’s instructions utilized in conducting a photographic array or live lineup shall be standardized, using a standardized “script” to assure instructions provided at each such event are complete and consistent.

2. The investigator conducting the photographic array or live lineup shall scrupulously avoid any conduct that directly or indirectly influences the witness’s decision.

3. Filler photographs used for photographic arrays or persons used for live lineups shall be proper shall be representative of the physical characteristics of the suspect in question in order to promote a fair and unbiased review by the witness.

4. When a witness views the photo array or live lineup, the words and actions of the witness and the process of the identification used shall be documented for proper and accurate presentation in future court proceedings.

FDLE has stated that law enforcement agencies shall implement these policies by November of 2011.

Eric Matheny represents clients charged with criminal offenses in Miami-Dade and Broward. Call today to speak with Eric Matheny.