DOJ Sets New Guidelines for Using Photos to Identify Suspects

2017 Photo Array Guidelines Champion Modern Police Technique

The Department of Justice (DOJ), for the first time in nearly two decades, has issued new guidance for federal prosecutors and DOJ law enforcement agencies — which include the FBI, DEA, ATF and the U.S. Marshals Service — on best-practices procedures for conducting photo arrays, the most common photo identification technique federal agents use, by asking eyewitnesses if they can pick the person they saw out of a group of photos.

The new guidance was sent out January 6 by Sally Yates, DOJ’s deputy attorney general in the Obama administration, who said the new initiative was designed to both “reflect decades of scientific research” and “bolster public confidence” in the criminal justice system.

Sally Yates’ 2017 Photo Array Guidelines memo called on all federal prosecutors to follow the new guidance in deciding whether to charge suspects identified through photo arrays, and directed DOJ agencies to revise their procedures as needed to adopt the new guidelines.

Blind versus Blinded

To produce and document more reliable eyewitness identifications, the DOJ memo says, unless there are exceptional circumstances, DOJ law enforcement agents should use either “blind” or “blinded” methods in conducting photo arrays (which it notes are easier to hold than in-person line-ups).

A “blind” photo array is administered by an agent who is not part of the investigation and does not know what the suspect under investigation looks like. This is intended to guard against the agent transmitting, even unintentionally, verbal or non-verbal cues or signals when the witness is shown a photo of the actual suspect.

In contrast, in a “blinded” photo array, the agent who conducts the session can be part of the investigation, but does not know the order in which the witness will examine the individual items within the group of photos. The agent is also positioned so to be unable to see which photo the eyewitness is looking at throughout the session.

Witness Confidence Matters

Citing what it calls a “growing body” of research indicating a witness’s level of confidence at the time of making an identification in a photo array often predicts accuracy more reliably than does the witness’s level of confidence expressed when testifying at trial, the 2017 Photo Array Guidelines also stress the importance of immediately documenting, after the witness makes an identification in the photo array session and in as much detail as possible, the witness’s level of confidence in the identifications. Recommended means to document witness confidence include videotaping, audiotaping or making an “as close to verbatim as possible” transcription of the witness’s statements.

The 2017 Photo Array Guidelines also say each photo array should include pictures of at least five individuals, who each fit the description the witness has given of the person involved in the crime. Before the new guidance, the last time DOJ addressed photo array usage was in its 1999 publication, Eyewitness Evidence: A Guide for Law Enforcement. The new guidance is meant, DOJ says, to set out general principles to be used for photo array identifications, not as a detailed step-by-step manual. The Yates memo also makes clear it is not meant to cover photo identification methods other than photo arrays, such as showing a witness a mugbook or a single photo of the suspect. The new guidance further notes it does not mean to imply photo identifications made with other procedures should be regarded as inadmissible or unreliable evidence.

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