The Facts

Actually innocent

The Lineup/Photo Array

Upon returning to work the day following the newscast, Investigator Nelson contacted Detective White with the Denver Police. During this conversation she offered to compile a photo array by hand for the detective.  She selected the photo’s for the array personally, something that a computer usually does based on the suspects description.  She then informed the officers that picked up the lineup photo’s, which position Mr. Hogan was in, creating immediate bias and opportunity for suggestibility.  It is not within standard procedure for another county, agency, or department to create a photo lineup for someone else.  Detective White himself testified that had Investigator Nelson not put together that lineup for him, he would have been unable to do so based on the limited description that the victim had given. Within a few days of the offense, the victim was called down to the police station to participate in a photo lineup.  During this process she was given a paper with a series of photo’s, including that of Mr. Hogan, and asked if she was able to identify anyone in those photo’s.  During this time both her husband and mother stood no more than 2 feet from her watching to see who she selected.  The victim inevitability named Jason Hogan as the perpetrator.  When asked why she selected him she did not mention a specific feature that stood out or name a positively identifying look that Mr. Hogan had.  She simply wrote a couple of lines on the paper.  She stated that she had a flashback in her head and Mr. Hogan’s face what what she saw.  Essentially she applied his face that of the suspect rather than applying the suspects face to the lineup.  In court the defense brought in an eyewitness expert that testified to the EXTREME suggestibility of memory, especially in a moment of trauma.  During the lineup process, the victim asked if Mr. Hogan had a tattoo, she was told that it was not relevant and should be ignored. While she was not present for any aspect of the crime, the victims mother also stated in her testimony that she had a “reaction” to Mr. Hogan’s photo and thought he could have been one of the 2 men she had seen earlier in the mall.  The description of the men’s clothing in the mall did not match that of the robbery suspect.  The victims mother never mentioned that she could make any sort of identification of the suspect yet in her testimony she was able to recall details she had previously not mentioned.  It was only after the victim had selected Mr. Hogan from the lineup that her mother commented that he might be the guy.. The husband, who caught a very brief glimpse of the suspect in passing, stood only feet away as his wife selected Mr. Hogan.  Until that day he had never claimed he could identify the suspect.  He was never able to provide detailed information regarding the suspects description.  It was only following the positive identification that he witnessed his wife make, that he determined Mr. Hogan was who he in fact remembered as the suspect. The victim was informed that a suspect was in custody PRIOR to the lineup.  This creates bias and leads a victim to believe that one of the photo’s being shown HAS to be the suspect. The victim questioned if Mr. Hogan had a tattoo but was told to ignore it. The victim viewed the lineup with her mother and husband present, two people who later provided positive identification in court even though they were never able to provide identifying details in the past.  Detective White would not have been able to create a lineup given the victim’s vague description. The victim could only state that she had a flashback and felt Mr. Hogan fit her memory.  She could not offer any one detail of his actual description that stood out or made her sure of her identification. An eyewitness expert testified to the suggestibility of memory and the unreliability of such flashback moments particularly in moments of trauma or duress.
The  Lineup