Encyclopedia of Psychology and Law

suggestive lineup procedures and file motions to sup-

press lineup evidence in these situations. Several sur-

vey studies have reported that lawyers recognize some

biased lineup procedures such as lineup composition

and instructions but not others (e.g., lineup presenta-

tion). One experiment tested the effects of biased

lineup procedures on defense attorneys’ reactions to

the lineup. These data showed that lawyers were sen-

sitive to some unfair lineup procedures. Compared

with lawyers who saw a fair lineup procedure, those

who saw lineups that were unfair with respect to the

composition were more likely to express their inten-

tion to file a motion to suppress the lineup identifica-

tion evidence and predict that a judge would grant

such a motion.

Having direct implications for the motion to sup-

press safeguard, defense lawyers reported that they

rarely attend their clients’ lineups. Most lineups are

pre-indictment photo arrays during which there is no

right to counsel (Kirby v. Illinois,1972; United States

v. Ash,1973). Thus, it is difficult for defense lawyers

to observe and record biased lineup procedures and to

substantiate a motion to suppress the lineup identifica-

tion. In 1999, the U.S. Department of Justice pro-

duced guidelines for law enforcement that included a

recommendation that lineup identification procedures

be documented. In theory, proper recording of lineup

procedures ought to contribute toward the effective-

ness of the motions to suppress safeguard.

Why the MMaannssoonnTest

Compromises Motions to Suppress

There are also U.S. Supreme Court decisions and case

law that speak of the effectiveness of motions to sup-

press lineup identification evidence. In Simmons v.

United States(1968), the Supreme Court ruled that

judges should not suppress lineup identification evi-

dence solely because it was gathered in a suggestive

manner. Instead, the Court ruled that judges should

determine whether the eyewitness identification was

likely to be accurate by considering the circumstances

surrounding the identification. In subsequent deci-

sions, the Supreme Court further eroded the sugges-

tiveness test by outlining criteria that judges should

consider when making their motion decision (Neil v.

Biggers,1972). In the Biggersdecision, the Supreme

Court proposed that judges consider five factors when

determining the reliability of an eyewitness identifica-

tion: opportunity for the eyewitness to view the perpe-

trator, the eyewitness’s degree of attention during the

crime, the eyewitness’s confidence in the lineup iden-

tification, the accuracy of the eyewitness’s description

of the perpetrator, and the length of time between the

crime and the identification procedure. Psychological

research has demonstrated that these five criteria are

not particularly predictive of lineup identification

accuracy. Finally, in Manson v. Brathwaite (1977), the

Supreme Court advised judges to weigh any sugges-

tive elements in the identification procedure against

the five criteria outlined in Biggers.

Timothy O’Toole and Giovanna Shay have chroni-

cled how protections against due process violations

have eroded since the Mansondecision and how this

decision has compromised the motion to suppress safe-

guards. Bringing psychology to bear on this issue, Gary

Wells demonstrated the fundamental flaw with the

Manson decision. Suggestive lineup procedures can

distort several of the self-report criteria spelled out by

Biggers,virtually guaranteeing that an identification

produced by suggestive lineup procedures would not be

suppressed. In other words, the Mansondecision makes

it unlikely that judges would grant a motion to suppress

the identification because they are likely to find at least

one of the five redeeming Biggerscriteria.

One Connecticut case,State v. Thompson(2004),

delineates clearly the flawed analysis in Manson.The

Thompson case involves a shooting that seriously

wounded the victim, Wesley Gray. Two firefighters at

a nearby fire station heard the gun shots, went outside,

and saw a man carrying a shotgun. One of the firefight-

ers indicated that he caught a “quick glance” at the

man’s face before he returned to the fire station, where

he continued to observe the man for a few moments.

Subsequently, the firefighter went back outside where

he saw the individual climbing a fence. The firefighter

retrieved the shotgun, handed it to the police, and pro-

vided a description. Shortly thereafter, a police officer

drove the firefighter witness to a dead-end alley, the

location where other officers had apprehended the sus-

pect. The police officer told the witness that the police

had apprehended the person who was “probably the

shooter,” shined the headlights from the police car at

the defendant, and asked the firefighter to make an

identification. The firefighter indicated that he was

“absolutely certain” that suspect was the shooter. The

defendant, Jerry Thompson, filed a motion to suppress

the identification on the grounds that it was highly sug-

gestive and unnecessary, but the court denied the

motion because the “totality of the circumstances”

indicated that the identification was sufficiently reli-

able for the jury to consider. The court relied on three

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