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MCNAMARA - FINAL 5/20/2009 5:17 PM 794 WISCONSIN LAW REVIEW investigation. Under Brathwaite, the question for courts would then be whether, given the suggestive use of a facial composite, the identification was nonetheless reliable. 194 To comply with this guideline, law enforcement should follow all avenues of investigation before producing a facial composite. Police should interview all eyewitnesses to gather information about the suspect. Verbal witness descriptions obtained in the interviews can then be distributed to law enforcement and the public to generate additional leads. 195 All physical evidence should be gathered and analyzed to acquire further information about the identity of the culprit. Only when all other leads have been exhausted should building a facial composite become necessary. Although a victim’s memory will decay while waiting to produce a facial composite, it is unlikely that waiting a few days, or even weeks, will significantly decrease the accuracy of the composite. Most facial composites are not produced immediately after a crime, 196 when the witness’s memory is the most accurate. 197 Research shows that the greatest memory loss occurs within the first hour, continues over the next nine hours, and then levels off. 198 Any loss of memory created by waiting to produce a facial composite is minimal at best, and outweighed by the inherent suggestiveness of composites. In Bloodsworth’s case, the police rushed to create a facial composite that could be distributed to the public. 199 Once police received a tip that Bloodsworth resembled the sketch, and discovered that he had a questionable alibi, tunnel vision set in and the police ignored other leads, including one about a man suspected of child 194. 432 U.S. 98, 114 (1977). 195. Although giving verbal descriptions may affect an eyewitness’s ability to subsequently accurately identify a suspect, supra note 172, they have not been found to be suggestive in the same ways as facial composites. Even if they were, it would not be realistic to prohibit law enforcement from asking eyewitnesses to describe culprits. Moreover, one study found that verbal descriptions are more accurate than facial composites in describing the likeness of a suspect. See Ellis et al., supra note 113, at 34–35. 196. See Roth, supra note 114 (noting that a witness waits anywhere from a few days to a week before preparing a composite). 197. Woocher, supra note 35, at 982 (stating that the memory of visual images begins to decay within minutes of the event). 198. See HERMANN EBBINGHAUS, MEMORY: A CONTRIBUTION TO EXPERIMENTAL PSYCHOLOGY 62–80 (Henry A. Ruger & Clara E. Bussenius trans., 1964). 199. JUNKIN, supra note 1, at 46–47. The composite sketch was created the same day as the crime, and it was distributed to the public through local newspapers and television news channels two days later. See id. at 34, 40, 47.
MCNAMARA - FINAL 5/20/2009 5:17 PM 2009:763 Eyewitness-Identification Procedures 795 sexual assaults in a nearby town. 200 That man turned out to be Ruffner, the real culprit. 201 If the police had waited to produce the composite and fully investigated other leads, they likely would have discovered Ruffner, saving Bloodsworth from years of wrongful imprisonment. B. Separating Identification Procedures Among Witnesses A second guideline for reducing the risks of misidentification when facial composites are used applies only when there are two or more eyewitnesses to a crime. If it becomes necessary to create a facial composite, an eyewitness who helps build a facial composite should not be involved in subsequent identification procedures. Rather, suspects gathered through the use of a facial composite should be identified by a different witness. Because research shows that facial composites taint the memories of eyewitnesses, 202 removing the first witness from the process would remove the element of suggestiveness caused by the use of a facial composite. If the second witness, who did not help create the facial composite, is then able to positively identify a suspect, this would serve as an untainted identification. An eyewitness who has participated in an identification procedure, such as a lineup, is often considered “spent,” such that he or she is not reliable enough to be used in a subsequent identification. 203 Extending this definition to include building a facial composite as an identification procedure, any witness who helps to build a composite should similarly be considered “spent” and not allowed to participate in a subsequent lineup. An identification of a suspect in a lineup by a witness who did not build a composite is more reliable, and thus less suggestive. This guideline is most useful if the witness at the lineup has not viewed the composite. This might be difficult if the composite is distributed to the public. This guideline is also limited to crimes with multiple eyewitnesses, both of whom had an opportunity to view the culprit, which may exist in only a few cases. C. Reasonable-Suspicion Requirement Lastly, if it becomes necessary to create a facial composite of the culprit because there are too few leads or other leads have been exhausted, and there is only one eyewitness, the risk of mistaken 200. Id. at 53. 201. Id. at 277–78. 202. See supra Part II.B.2. 203. See Wells, Systemic Reforms, supra note 47, at 640; see also OFFICE OF THE ATTORNEY GEN., supra note 48, at 6.
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