Identification Parades and Photo Identification in Spain: Safeguards and Evidential Value

Identifying whoever committed an offence looks like the simplest part of a criminal case and is in fact one of the most fragile. A witness's memory does not work like an archive: it is reconstructed, contaminated by what is seen afterwards and reinforced by the confidence the procedure itself conveys. That is why the LECrim surrounds the identification parade with precise rules in Arts. 368 to 370, and why breaches of them are argued in so many trials.

You are under investigation and an identification procedure is held

A parade is not a formality: it is the moment when a generic description — "a young man, medium height" — becomes a specific accusation against a person. What happens in those minutes shapes the rest of the case, because an identification tends to harden afterwards: someone who has pointed at a person once rarely retracts. Hence the safeguards focus on how it is carried out, not on how it is later assessed.

When an identification parade is appropriate

Art. 368 LECrim provides that anyone making an accusation against a specific person must identify them judicially where the investigating judge, the prosecution or the accused themselves reasonably consider the step necessary for identification, so that there is no doubt as to who the accusers are referring to.

Two consequences matter to the defence. First, a parade is not held in every case but where identity is genuinely in doubt: if the person investigated and the complainant already knew each other, the exercise has no identifying purpose. Second, the person investigated may ask for it: where the accusation rests on a generic description, requesting a parade with full safeguards is a defence decision, not a concession.

How the parade is carried out

Art. 369 LECrim describes the act in detail. The person to be identified is placed before the witness together with others of similar outward circumstances. The witness acts in the presence of all of them or, if the judge considers it preferable, from a point where they cannot be seen. They must state whether the person referred to in their statements is in the line-up and, if so, point them out clearly and specifically.

The second paragraph adds the documentary requirement, in practice the most productive one for the defence: the record drawn up must state all the circumstances of the act and the names of everyone who made up the line-up. Without that information it cannot be checked whether the volunteers had similar outward circumstances, which is the core of the safeguard.

Arts. 371 and 372 complete the picture with practical precautions: whoever makes the arrest must prevent the detainee from altering their appearance or clothing in a way that hinders identification, and those in charge of detention facilities keep the clothes worn on arrival so they can be worn for the procedure. If doubts about identity remain, Art. 373 allows it to be established by any suitable means, and Art. 374 requires the judge to record the person's physical description in detail.

Several witnesses and several people to be identified

Art. 370 LECrim deals with the two plural situations through opposite rules. Where several people are to make an identification, the procedure is carried out separately with each of them, and they may not communicate with one another until the last identification has been made. Where, by contrast, several people are to be identified by the same witness, all of them may be identified in a single act.

Keeping witnesses apart is no minor formality. A remark in the corridor — or simply sensing that someone else has already pointed at a person — is enough for the second identification to stop being independent. Where the record does not document how that separation was secured, the weight of successive identifications is weakened.

Legal assistance is not optional

Art. 118.2 LECrim expressly includes among the lawyer's functions being present at every statement by the person investigated and at identification procedures, confrontations and reconstructions. For a detainee, Art. 520.6.b) sets out what that assistance involves: taking part in identification procedures concerning them and, once the procedure has ended, asking the judge or officer who conducted it to state or expand on the points considered appropriate, as well as having any incident recorded in the minutes.

That last point is the single most useful practical tool in the whole regime: whatever is not recorded at the time is almost impossible to establish later. A line-up with visibly dissimilar volunteers, a prior hint to the witness or a suspicious delay can only be argued at trial if they were put in writing.

Photo identification is not a parade

The LECrim does not regulate photo identification as an identification procedure: Arts. 368 to 370 describe the parade and only the parade. Showing albums or photo arrays is a police investigative step, useful for steering enquiries where there is no suspect, but it does not carry the safeguards of cross-examination and documentation that the judicial procedure has.

Hence the rule applied in practice: photo displays serve to open a line of enquiry; once a specific suspect exists, identification must be channelled into the parade of Art. 369, with similar volunteers, a clear designation and a complete record. Where the prosecution relies solely on an earlier photo identification later "confirmed" in a parade, the defence has a solid argument: the second procedure may be confirming the photograph rather than the memory of the event.

Evidential value: identification is decided at trial

An identification carried out during the investigation is an investigative act, not evidence. The evidence of identification is produced at trial, when the witness testifies subject to cross-examination and answers the defence's questions. The earlier identification then comes into play as a point of comparison: if the testimony at trial does not substantially match the statement made during the investigation, any party may ask for it to be read out and the presiding judge will invite the witness to explain the difference (Art. 714 LECrim). Only where the procedure cannot be reproduced at trial for reasons beyond the parties' control may it be read under Art. 730 LECrim.

This approach is developed in the article on identification of the accused at trial. It also connects with how courts weigh an identification resting on a single witness: the confidence expressed at trial is not by itself a measure of accuracy, and the judgment has to explain why the identification is reliable given the conditions in which the witness observed the events — distance, lighting, time elapsed and the number of intervening displays.

Common errors in how the procedure is run

• Dissimilar volunteers. Obvious differences in age, build, appearance or clothing turn the parade into a prompted designation.
• Prior display of the suspect. Seeing the person investigated handcuffed, at a police station or in a photograph pointed out beforehand contaminates the later identification.
• Witnesses not kept apart. Contrary to the express rule in the first paragraph of Art. 370.
• Vague designation. "He looks like him", "it could be him" or an identification based on clothing do not meet the requirement to point someone out clearly and specifically.
• Incomplete record. Without the names of those in the line-up or the circumstances of the act, the procedure cannot be verified.
• No lawyer present. Running the procedure without the assistance required by Arts. 118.2 and 520.6.b) LECrim.

What to do (and what not to do) if the parade was irregular

First, put it on the record at the time. Objections raised afterwards in writing, with nothing in the minutes, carry little weight against a procedure that looks regular on its face. Second, request the complete documentation: the minutes, the identity of the volunteers, any photographs or recording, and the police report that preceded the procedure, which usually shows whether images were displayed beforehand.

The challenge is then built along two distinct routes that should not be mixed. Where the defect concerns ordinary legality — dissimilar volunteers, an incomplete record, witnesses not kept apart — what is argued is the reliability of the identification and its persuasive force. Where the defect affects a fundamental right, such as running the procedure without legal assistance, the regime of unlawfully obtained evidence applies. Strategy also covers what not to do: accepting a badly formed parade in the hope of correcting it at trial, or waiving the recording of incidents in the minutes.

If an identification procedure has been or is about to be carried out in your case, it is worth reviewing it with a criminal defence lawyer before it hardens. You can contact us at +34 91 078 65 74.