Reforming Eyewitness Identification Procedures under the Fourth Amendment
This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be the first constitutional consideration when determining the lawfulness of an identification procedure. It is simply not possible to separate the influence of suggestion in a lineup from the validity of the ensuing identification. This article suggests that a due process inquiry occur after the assessment of Fourth Amendment claims. The benefits of the application of the exclusionary rule to identification testimony that is not accompanied by procedural safeguards outweigh the social cost. This article further recommends the implementation of two procedural safeguards for use in eyewitness identifications. First, police must have a minimum of “specified suspicion” of criminal activity before requiring an individual to appear in a lineup. Second, specific procedural guidelines designed to minimize suggestion in the lineup should be required. Failure to utilize these procedural safeguards should result in the exclusion of any identification testimony at trial. This is because the purpose of the exclusionary rule as it pertains to the Fourth Amendment is to regulate police conduct. Such a rule is also in accord with general standards of fairness and justice. Regulation of eyewitness identification procedures will result in the protection of the innocent from arrest and wrongful conviction.
Sarah Anne Mourer. 2007. "Reforming Eyewitness Identification Procedures under the Fourth Amendment" ExpressO
Available at: http://works.bepress.com/sarah_mourer/1