Test Identification Parades and the Accused: Assessing Structural Biases in India’s TIP Framework

Introduction

Recently, in Liyakat Ali v State of Himachal Pradesh, the Himachal Pradesh High Court acquitted several accused persons after nearly 15 years of incarceration, terming the prosecution’s failure to conduct a Test Identification Parade (‘TIP’) a ‘serious lapse in investigation’. 

A TIP is a pre-trial identification procedure in which a witness is asked to identify an accused from among other persons. TIPs are ordinarily conducted at the stage of investigation and serve a two-fold purpose: to assure the investigative agencies that the investigation is proceeding on the right lines, and more significantly, to corroborate the witness’ subsequent identification of the accused in court. Where the accused is a stranger to the witness, courts generally regard it as a matter of prudence to have their identification be corroborated by a TIP, given the inherent weakness of first time in-court identification. 

In Liyakat, having noted serious infirmities in the witness testimonies of the prosecution, it was held that the circumstances of the case warranted drawing an adverse inference against the prosecution. However, what gains significance here is that the Court did not lay down that such an inference be drawn against the prosecution in case of a failure to conduct a TIP, as a matter of rule, even where there are serious infirmities in the prosecution’s evidence and the accused pleads a lack of proper identification. This judicial restraint is in line with earlier cases, where courts have acknowledged the absence of a TIP as a significant lapse but have refrained from drawing an adverse inference against the prosecution.

​​​​In contrast, despite the Supreme Court’s authoritative pronouncement in ​Rajesh v State of Haryana, that an accused’s refusal to participate in a TIP cannot, by itself, sustain a conviction, refusal ​continues​ to be considered an ​adverse circumstance​ against the ​accused​.  ​​Moreover, it has been repeatedly held that the accused has no right to mandatorily call for a TIP. ​

Consequently, in this blog, I shall question the basis for this inequitable standard. This blog shall have the following prongs: first, I shall discuss certain inherent variables of eyewitness identification that reflect an unfair standard for the accused; second, I shall problematise one troubling asymmetrical standard of the law on TIPs which fails to draw an adverse inference against the prosecution’s case, despite a specific plea of misidentification being raised by the accused; lastly, this blog makes the claim that TIPs currently reflect a structurally unfair standard for the accused and discusses certain potential reforms.

Biases Inherent in TIP

It is well-settled that a TIP is not substantive evidence but only corroborative of in-court identification. Courts have often held that in-court identification, absent prior corroboration through a TIP, cannot ordinarily sustain a conviction. Given such importance being afforded to a TIP, their procedural fairness assumes importance.

TIPs rest heavily on the reliability of eyewitness memory, which, as is often pointed out, is inherently malleable and susceptible to distortion. Gary Wells, in his seminal work, laid down several ‘variables’ that affect memory. These include ‘estimator variables’, ‘system variables’ and ‘psychological variables’ which cumulatively affect the reliability of human memory and consequently, become determinative in assessing the fairness of the process. The following sections examine these variables and assess the adequacy of ​domestic ​legal safeguards addressing them.

System variables and Suggestive Lineups 

Wells defines system variables as those that can, and should, be controlled by criminal procedure. These include the methods used by the investigative agencies while conducting TIPs and aspects of witness behaviour shaped by the structure of the procedure adopted. While these have received great scholarly interest in other jurisdictions, there is a paucity of literature and judicial pronouncements authoritatively dealing with the fairness of the modalities of a TIP in the Indian context. 

​​A fundamental problem arising during TIPs from a witness-centric perspective, as identified by psychological research, is the ‘relative judgment process’. Studies indicate that when presented with a simultaneous lineup, a witness does not necessarily compare each individual to their memory of the perpetrator. Instead, they feel compelled to pick the person who most closely resembles their memory relative to the other individuals in the lineup. ​​​

Some of these cognitive biases were highlighted in Oregon v Lawson, wherein a US court addressed the problem of mistaken identification with a science-based analysis. The court noted that in simultaneous lineups, even when there is no suspect placed in the lineup, witnesses often ‘identify’ the alleged perpetrator due to an imagined compulsion to do so from biases that flow from the relative judgement process. It is often assumed that the investigation agency must have placed an accused in the lineup.

Furthermore, it is not only witness-centric variables, system variables also arise due to subtle hints or post-identification confirmative feedback by the police that influence both the witness’ decision and their certainty afterwards. For instance, in Tahir Mohd v State of MP, the prosecution utilised a lineup where the suspects had fetters on their legs while other filler witnesses did not have any fetters. This, as the Court held, influenced the witness’ choice in identifying the accused. However, in none of such similar cases have the Indian courts addressed, ​​​​as a matter of rule, methods to ensure fairness of the lineup procedures and the admissibility of suggestive lineup evidence. 

In other jurisdictions, courts have undertaken some efforts to address such concerns. Nevertheless, it appears that the law remains inequitable in various aspects. For instance, in the landmark case of Manson v Braithwaite, the US Supreme Court held that suggestive lineup procedures do not render the witness testimony inadmissible per se. Instead, the court laid down five factors to analyse the reliability of the witnesses: (a) the opportunity of the eyewitness to view the offender at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the offender, (d) the level of certainty displayed by the witness at the identification procedure, and (e) the length of time between the crime and the identification procedure.

Several judgements in the Indian context do address similar factors, wherein the courts take into account the witness’ certainty of identification, the opportunity to identify the witnesses and the length between the crime and the identification. However, subsequent psychological research has demonstrated that each of these factors is susceptible to distortion due to the indeterminacy of psychological variables, primarily memory. In this context, the role of psychological variables warrants further scrutiny. 

Psychological Variables and the Myth of the ‘Enduring Impress’

Wells defines psychological variables as those finding their basis in the inaccuracies of the human memory. Indian courts have on a few instances recognised the fluidity and malleability of human memory. For instance, in Pargan Singh v State of Punjab, the Court noted that ‘human memory does not work like a video recorder’. 

Despite such an understanding, courts often draw an exception to the above ratio. In Raja v State, the Court held that a delay in conducting TIP may be condoned if there is reason to believe the offence resulted in an ‘enduring impress on the memory of the identity of the accused on the memory of the witness’.

To establish an enduring impress, courts analyse several factors including the duration of the offense, the nature of injuries inflicted or most importantly, the gravity of the offence having been committed. In Pargan Singh, despite a seven-year delay in identification, the Court held that a 90 second encounter where the witness received gun-shot wounds would qualify as a ‘traumatic experience’ giving the witness’ account adequate credibility. Similarly, in Pramod Mandal v State of Bihar, an eyewitness witnessing a dacoity and having suffered injuries would lend adequate credibility to their testimony, despite a delay in holding a TIP.

While the gravity of the offences in question is not in dispute, such an understanding by the courts fundamentally belies the operation of memory. There is no direct correlation between a courts’ subjective description of the gravity of the offence and the victim’s accuracy of their memory. In fact, psychological research suggests that extreme stress and trauma can severely impair memory encoding and recall.

​​A germane example of this lack of correlation is the case of Jennifer Thompson (State v Cotton) in the US. In this case, a rape victim identified her rapist with certainty both in the lineup before the police and in court. It was only after eleven years of his incarceration that DNA evidence exonerated him, revealing that a fellow convict, very similar in appearance, was the actual perpetrator. Despite the confession, it is pertinent to note that Thompson herself, upon seeing the real perpetrator, could not recognise him and remained confident in her original, mistaken identification. The case also highlighted the relevance of post-identification feedback, as confirmation by the police of her identification matching the photo identification was said to have bolstered her belief. Hence, it is by no means a stretch to argue that human memory is extremely susceptible to inaccuracies.​​​

The Asymmetrical Application of Adverse Inferences

The structural bias against the accused in the operation of TIPs gains another dimension while analysing the courts’ asymmetrical application of adverse inferences. As mentioned at the outset, courts often draw an adverse inference against the accused for their refusal to participate in a TIP. Ostensibly, the underlying rationale behind this is twofold: first, that TIPs are an inherently credible means to establish identity of the accused and second, that non-participation must stem from an ulterior motive to avoid identification. 

However, the preceding discussion casts doubt on both assumptions. A TIP cannot invariably be treated as a reliable test of identification, given the influence of suggestive procedures and memory-related distortions. Further, an accused’s refusal to participate cannot necessarily be attributed to an apprehension of being identified, particularly when the accused may have legitimate concerns regarding the fairness of the procedure. Consequently, both assumptions may not perfectly hold true in certain scenarios.

Furthermore, in scenarios where the accused pleads misidentification or non-holding of TIPs, the failure of prosecution to conduct one does not draw an adverse inference against their case. This seems absurd since the first assumption applies here as well, i.e., if it is assumed that TIPs are credible means of identification, then the failure to conduct a TIP would also point to a similar assumption of their being some ulterior awareness that the accused may not be identified by the witnesses. 

Moreover, it must be noted that when an accused themselves plead misidentification and call for a TIP, they risk the creation of corroborative evidence against them. Hence, it is quite unlikely that calling for a TIP is a mere dilatory tactic. In Tek Chand v The State, the Court did recognise this principle to a limited extent, holding that a refusal to conduct a TIP upon the accused’s request may expose the prosecution to a genuine criticism that their witnesses may not be able to identify the accused. However, here as well, the Court did not lay down a fixed rule and merely held that holding a TIP may be desirable.  Similarly in Liyakat, the Court did not draw an adverse inference solely on the basis of the failure to conduct a TIP. The failure thereof was merely termed as a ‘serious lapse in investigation’ and other serious infirmities in the case coupled with it, led the court to draw an adverse inference. While there have been a few other scattered instances of courts questioning a prosecution’s hesitation in conducting a TIP, no case has drawn an adverse inference on the failure to conduct a TIP.  

Way Forward

In sum, the current legal framework governing TIPs in India reflects a structurally unfair standard that is weighed heavily against the accused.  Not only is an accused in an unfavourable position due to variables that inhere in the process of a TIP, but even an accused’s voluntary participation in the process yields them no judicial benefit in the absence of a prosecution’s willingness to conduct a TIP.  

Consequently, several structural reforms have been proposed over the years to mitigate the effects of inherent biases associated with lineup procedures. These include using ‘double-blind administration’ lineup procedures. This ensures that the officers conducting the TIP have no connection with the case and provides for adequate safeguards in the form of ensuring that filler witnesses bear close resemblance to the eyewitness’ description of the accused and more importantly, that no subtle hints confirming the witness’ selection are given to ensure that the operation of post-identification effects is reduced. 

Another recommended measure is to utilise ‘sequential lineups’, instead of simultaneous ones, to mitigate the operation of the relative judgement process and ensure that the witness’ identification is more accurate, based on independent memory rather than comparative assessment. Wells, in his research, displays a significantly less misidentification rate in cases of sequential lineups. 

While the implementation of such systemic reforms may be slow to ensue, more immediate changes are both feasible and necessary. Courts should recognise the accused’s right to request a TIP, especially in cases where misidentification is specifically pleaded. Denial of such a request should invite evidentiary consequences for the prosecution in the form of drawing adverse inferences. Ultimately, the evidentiary value of a TIP must be balanced against its procedural integrity. Without meaningful safeguards, TIPs risk becoming tools of confirmation rather than verification.

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This article has been authored by Vikram Raj Nanda, a student at National Law School of India University, Bengaluru. This blog is part of RSRR's Rolling Blog Series.