Comments by Police to Identification Witnesses

General rule

• An otherwise permissible procedure to obtain an identification of a perpetrator may be violative of due process if it is accompanied by verbal communications that distinguish and emphasize a defendant in an unduly suggestive manner.

Young v. State, 700 N.E.2d 1143, 1146 (Ind. 1998)

Impermissible comments: Comments which explicitly indicate the presence of an arrestee

• [T]he potential suggestivity of either a photograph or a corporeal lineup is heightened by the police specifically telling a witness that a person who has been arrested and charged with the crime is among the group.

Sawyer v. State, 298 N.E.2d 440, 443 (Ind. 1973)(citing United States v. Gambrill, 449 F.2d 1148, 1151 n. 3 (D.C. Cir. 1971))

Brooks v. State, 560 N.E.2d 49, 56 (Ind. 1990), reh’g denied(quoting Sawyer v. State, 298 N.E.2d 440, 443 (Ind. 1973))

See Glaser v. State, 575 N.E.2d 329, 331 (Ind. Ct. App. 1991)(internal citations omitted)(“Suggestive circumstances include the police informing witnesses that arrested suspects are among those included in a photographic display or a line-up . . . .”)

• A witness may thus be lead to feel that he has an obligation to choose one of the participants in the display since the police evidently are satisfied that they have apprehended the criminal. The result may be that the witness strains to pick someone with familiar characteristics or someone who most resembles the actual criminal or the result may be that the witness will choose the one least dissimilar by the process of elimination. Such a comment as the one by the authorities here needlessly decreases the fairness of the identification process.

Sawyer v. State, 298 N.E.2d 440, 443 (Ind. 1973)

Brooks v. State, 560 N.E.2d 49, 56 (Ind. 1990), reh’g denied(quoting Sawyer v. State, 298 N.E.2d 440, 443 (Ind. 1973))

Impermissible comments: Comments which explicitly indicate the presence of someone who is guilty

• Informing the witness that the guilty party is in the lineup constitutes an impermissibly suggestive procedure.

Whitt v. State, 361 N.E.2d 913, 918 (Ind. 1977)(citing Sawyer v. State, 298 N.E.2d 440, 443 (Ind. 1973))

Permissible comments: General comments which do not explicitly indicate the presence of an arrestee

• Defendant now claims that the statement by police that there were some suspects to observe in Muncie was unduly suggestive. It appears, however, that this was a general statement by the police that was not impermissibly suggestive when considered in context. It is, after all, normally presumed that the police have parties at least suspected of being involved before they have witnesses view the persons or their photographs. Testimony by the witnesses and by police was that when the photographic displays were shown to [the witnesses] in Muncie, there was no reference made to the fact that photographs of any particular suspects were included in the photo array and no suggestion was made to any of the witnesses regarding their examination of the photographs.

Randall v.State, 474 N.E.2d 76, 82 (Ind. 1985), reh’g denied

• The victim testified that she was called to come down to the police station, and informed by a detective that they wanted her to “look at someone.” She was then taken to a courtroom and told that the person they wanted her to look at would be appearing at some time. . . . The sole argument on appeal is that the detective’s suggestion before this line-up that they wanted the victim to look at someone, coupled with the later statement to the victim that such person would be appearing shortly, made the line-up unnecessarily suggestive. We do not agree. “It would normally be expected, if one were viewing a line-up, that there apparently is at least one person in that line-up that the police suspect may be the one who committed the crime.”

Harris v. State, 373 N.E.2d 149, 150 (Ind. 1978)(quoting Pierce v. State, 369 N.E.2d 617, 620 (Ind. 1977))

• The statement of Officer Swenke to [the witness] on the phone to the effect that “we think we have the man here” or “we think we have the suspect here,” would not necessarily be a suggestive statement. It would normally be expected, if one were viewing a line-up, that there apparently is at least one person in that line-up that the police suspect may be the one who committed the crime. The testimony, again, at the suppression hearing, by Officer Swenke, [the witness], and her husband, was that Officer Swenke made no suggestion whatever to them at the police station. He simply told her there would be six people she would look at, and he wanted her to look them over and see if she recognized any of them.

Pierce v. State, 369 N.E.2d 617, 620 (Ind. 1977)

• The first victim was only informed that the police had arranged a lineup of suspects for her to view to see if she could identify anyone as the man who raped her. There were no suggestions made by the police that she should be identifying anyone in particular. Under these circumstances the identification procedures were not unnecessarily suggestive of guilt and did not give rise to a substantial likelihood of misidentification.

Little v. State, 475 N.E.2d 677, 682 (Ind. 1985)(emphasis added)

Other permissible comments

• A police officer’s comment, that the suspect they had detained had altered his appearance by shaving off his moustache, did not render the original identification of the suspect from photographic lineup suggestive, but rather was a good-faith response to the suspect’s attempt to conceal or alter his identity.

See Atkinson v. State, 498 N.E.2d 389, 391 (Ind. 1986)

• When the photo array was presented to the victim, there was no suggestion that the picture of the defendant was among the group. The officer also reminded the victim that certain characteristics, such as hair length, could be easily altered. As such, the photo array was not impermissibly suggestive.

Payne v. State, 687 N.E.2d 252, 254-55 (Ind. Ct. App. 1997)

• [The defendant] also claims that Officer Roland was guilty of misconduct in that he informed the witnesses which one of the photographs was that of [the defendant]. However … the record discloses that Officer Roland made no such identification until after each of the witnesses had picked [the defendant’s] photograph. At that time, he did indicate to them that they had selected the photograph of [the defendant]. ... We cannot perceive how [the defendant] could be harmed by witnesses being informed as to whether they had chosen [the defendant’s] photograph after having made a certain and unequivocal identification. ... The trial court did not err in refusing to suppress the evidence of identification.

Chapman v. State, 556 N.E.2d 927, 932-33 (Ind. 1990)(emphasis added)

• Although it is true that [the witness] identified [the defendant] as the photographs were laid down one by one, she was immediately instructed to look at all of the photographs before making her final decision. Further, it was not until after she had selected [the defendant’s] photograph from the array that the officer indicated that in his own mind he thought that [the defendant] was the one. We do not find this procedure unduly suggestive.

James v. State, 613 N.E.2d 15, 27 (Ind. 1993)

• [The defendant] also claims the procedure was unduly suggestive in that Detective Fine questioned witness Ratliff as to her selection of photographs. After Detective Fine asked her “are you sure,” [the witness] again examined the photographs and said that she in fact was in error and chose [the defendant’s] photograph. There is nothing in the record to indicate that Detective Fine made any suggestions to [the witness] other than to ask her if she was sure of her identification. . . . We see no evidence in this case of improper conduct during the photographic identification.

McGowan v. State, 599 N.E.2d 589, 592 (Ind. 1992)