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MCNAMARA - FINAL 5/20/2009 5:17 PM 796 WISCONSIN LAW REVIEW identifications can still be reduced by requiring reasonable suspicion to place a suspect in a lineup. 204 Wells recently proposed this requirement as one of seven recommendations to improve the reliability of eyewitness identifications. 205 This guideline proposes that reasonable suspicion should be independent from a resemblance to a facial composite. Wells defines reasonable suspicion as a reasonable belief that the suspect is the culprit. 206 While some law-enforcement agencies wait to place suspects in lineups until they have enough evidence to believe they are likely the culprit, other agencies place suspects in lineups merely based on a hunch. 207 Often, this hunch is based on a belief by a police officer or member of the public that the suspect resembles the composite sketch. 208 Because of the inherent risk of being placed in a lineup, “a policy that permits individuals to be placed in lineups on mere hunches or wild guesses could very well yield a high rate of mistaken identifications.” 209 Therefore, a reasonable belief that a suspect is the culprit should be based on evidence independent from a composite that corroborates the suspicion that the suspect is the actual culprit. Recent federal guidelines from the U.S. Department of Justice recommend that resemblance to a composite should not rise to the level of probable cause. 210 The federal guidelines emphasize that the purpose of composites is to develop investigative leads, and should not be used as stand-alone evidence. 211 Yet, most states are silent on this issue. Although most law-enforcement agencies agree in theory that the purpose of a composite is only to develop leads, in practice tunnel vision often interferes with this policy. 212 A composite that highly resembles a suspect may encourage police to seek evidence that corroborates their beliefs and ignore evidence that does not, again 204. A standard lineup includes six people, only one of whom is a suspect. Wells, Systemic Reforms, supra note 47, at 617. The reasonable-suspicion requirement only applies to the suspect. See id. at 635–36. If there is more than one suspect, they should be in separate lineups, each requiring reasonable suspicion. 205. Wells, Systemic Reforms, supra note 47, at 635. 206. Id. 207. Id. at 637. 208. Steven Avery, for example, was placed in a lineup merely because a police officer believed he resembled a facial composite produced by the victim. Findley & Scott, supra note 17, at 300. 209. Wells, Systemic Reforms, supra note 47, at 639. 210. See NAT’L INST. OF JUSTICE, U.S. DEP’T OF JUSTICE, EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT 18 (1999). 211. Id. 212. See supra note 29 and accompanying text (explaining tunnel vision).
MCNAMARA - FINAL 5/20/2009 5:17 PM 2009:763 Eyewitness-Identification Procedures 797 highlighting the dangers of using facial composites in any criminal investigation. 213 D. Implementation of the Guidelines There is a variety of ways how these guidelines could be implemented and enforced. First, following in the same vein as Brathwaite, the courts could require that identifications stemming in part from a composite would be subject to the Due Process Clause. If the use of the composite in the investigation violated due process, the evidence would not be admissible at trial. Failing to comply with the guidelines would be evidence that due process was violated. Although very few identifications are ever excluded from trial, 214 clearly establishing that composite procedures must comply with due process might serve to deter police from misusing composites out of fear that subsequent identifications would be excluded. 215 The underlying purpose of applying Brathwaite to the use of facial composites, however, is ultimately to reduce the risks of misidentifications, and therefore the guidelines could be implemented without help of the courts. A second approach would be for lawenforcement agencies to voluntarily implement the guidelines. Many agencies already have extensive guidelines for other identification procedures, namely photo arrays, live lineups, and show-ups. 216 Adding similar guidelines for the use of composites would fit easily into already existing frameworks. Additionally, legislative bodies could mandate specific procedures, or at a minimum require law-enforcement agencies to adopt written policies regarding the use of composites, while offering concrete policies for consideration. 217 Evidence that an agency did not follow mandated procedures, or even its own policies, would be further 213. Once Bloodsworth was identified to police as closely resembling the facial composite, officers largely ignored hundreds of other leads that had not yet been investigated. See JUNKIN, supra note 1, at 49, 57. Officers also relied heavily on a psychological profile of the offender that matched some aspects of Bloodsworth’s personality, despite warnings from the FBI that the profile was only to be used as a tool to narrow potential suspects. Id. at 71–75. 214. See Doyle, supra note 54, at 137. 215. See Manson v. Brathwaite, 432 U.S. 98, 112 (1977). 216. See supra note 47. 217. Wisconsin, for example, now requires that law-enforcement agencies adopt written policies for eyewitness identifications, and in doing so consider model policies and polices of other jurisdictions. See WIS. STAT. § 175.50(2), (4) (2007–08). Although agencies are not required to adopt specific procedures, such as sequential lineups or double-blind administration, they must consider them. Id. § 175.50(5).
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