Amendments to the identification of suspects in criminal proceedings

Amendments to the identification of suspects in criminal proceedings
Amendments to the identification of suspects in criminal proceedings

More than 70% of convictions overturned as a result of DNA testing were the result of incorrect identification of a person in a lineup or identification through photographs.

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After being approved at the close of the legislative session, Senate Bill 51several amendments to the Rules of Criminal Procedure are submitted to Governor Pedro R. Pierluisi for consideration.

The legislative measure, authored by Senators Thomas Rivera Schatz and Gregorio Matías Rosario, proposes to amend Rules 252.1 and 252.2 of the Rules of Criminal Procedure of 1963, as amended, in order to establish certain parameters to prevent suggestibility and increase reliability in the process of identifying a suspect by a witness.

The measure states that incorrect identification of suspicious persons by witnesses is the largest cause of wrongful convictions in the United States and that according to data from the Innocence Project Networkmore than seventy percent (70%) of the convictions overturned as a result of DNA testing were the result of incorrect identification of a person in procedures such as lineups or identification through photographs.

This percentage of wrongful convictions is limited to only those cases where biological evidence is available, mostly in sexual assault cases. However, incorrect identification of the accused also plays a role in cases where biological evidence is lacking.

Related Course: Post-Sentence DNA Analysis: Certainty v. Purpose

In Puerto Rico, Act No. 174 of July 23, 1974, added Rule 252 to the Rules of Criminal Procedure of 1963, as amended, in order to establish a uniform procedure for identifying suspects prior to trial, through the mechanism of a lineup or through the use of photographs.

According to the legislative report, Rules 252.1 and 252.2 of the Criminal Procedure Rules regulate the identification of suspects through a lineup or identification through photographs. As for the lineup, it will be composed of no less than five (5) persons, including the suspect.

For identification by photographs, it is required that the witness be shown no less than nine (9) photographs, including that of the suspect, if available. In addition to these methods for identifying suspects, the State can achieve this objective through DNA, fingerprints, and identification by witnesses in court or out of court.

The authors of the legislative measure claim that the rule of law applicable to this important stage of the criminal process is so uneven and so flexible that it has reduced the rigor and formality of the process, turning it into a reserve mechanism that, in a way, takes away constitutional guarantees from the suspect, which can result in regrettable erroneous convictions due to incorrect identifications.

Download the measure

As approved by Conference Committee, the bill amends Rule 252.1 to add rules on the procedure during the lineup to ensure that:

  • The officer or official in charge of the lineup may not know the identity of the suspect or detainee. In cases where it is impossible for the officer or official in charge of the lineup to know the identity of the suspect or detainee because there is no other suitable official to conduct the lineup, the investigating officer may conduct the lineup with extreme care not to communicate to the witness in any way, verbally or non-verbally, the identity of the suspect.
  • The lineup will be conducted consecutively, not simultaneously. The officer or official in charge of the lineup will show the witness only one person at a time. Provided that each person will be removed from the lineup prior to the entry of the next person.

Likewise, among other amendments added, it is established that prior to the beginning of the lineup of detainees, the officer or official in charge of the lineup must warn and instruct the witness as follows:

  • You will be asked to view a group of people individually.
  • It is equally important to clear suspicion from, or exonerate, innocent people as it is to identify guilty people.
  • People may not look exactly like the perpetrator looked on the date of the incident.
  • The person suspected of committing the crime may or may not be shown during the lineup.
  • Regardless of whether a positive identification is made, police will continue to investigate the incident.
  • People will be shown one at a time and in random order.
  • The witness must identify the person who committed the crime, if he or she is present among the members of the lineup.
  • All persons or members of the parade will be presented to you, even if identification is required.

Regarding the use of photographs as a means of identification, it is added as a rule that the officer or official in charge of showing the photographs to the witness may not know the identity of the suspect or detainee.

In cases where it is impossible for the officer or official responsible for showing the photographs to be unaware of the identity of the suspect or detainee, because there is no other appropriate official to do so, the investigating officer may show the photographs, taking extreme care not to communicate to the witness in any way, verbally or non-verbally, the identity of the suspect.

The legislative measure must be signed by the presidents of the Legislative Bodies to be sent to Fortaleza.

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