Durham's Keystone Cops

The defense attorneys and criminal law experts are questioning the photo identifications used in the Duke rape case:

However, an eyewitness identification expert believes the police lineup procedure was flawed because no non-lacrosse players were included.

Gary Wells, president of the American Psychology-Law Society, described it as "a multiple-choice test without any wrong answers."

By including "fillers," or non-suspects, in a police lineup, an accuser has to pick past the filler to choose people who actually might have committed the crime. "Without fillers as a control, the process has no internal credibility check," Wells said.

David Rudolf, a North Carolina defense lawyer and adjunct professor at Duke and the University of North Carolina-Chapel Hill, believes the procedures may be problematic to the point of being inadmissible in court. "I have significant doubt that this will be admitted in court," he said, "and no doubt defense will challenge it vigorously."

The issue, Rudolf explains, is that due process prohibits evidence from lineups that are unnecessarily suggestive and conducive to mistaken identity.

>"When you take the only suspect group and put it in front of the victim," Rudolf says, "by definition you're suggesting it was one of the 46 people in that group."

How could the lineup have been done differently? Police could have used pictures of male Duke students to construct 46 lineups -- each one with a lacrosse player and five six students with similar features who are not lacrosse players. From those lineups, one could determine whether the victim picks out those who allegedly attacked her.

"At that point, you have a lineup that's not unnecessarily suggestive," Rudolf says. "You'll have students who are clearly not at the party."

Defense attorneys had their own criticism about how the lineup was done and have said they would suppress the results of the lineup. Sources close to Seligmann also point out that he and other members of the team look alike, casting doubt on the alleged victim's ability to single out her alleged attacker.

A lineup without controls?

Bad lineup, no DNA, no witnesses and timestamped evidence which completely destroys the prosecutor's timeline. At least Nifong has charged two people. Maybe he will win that primary after all.