Identification

When a defendant is charged with a crime against a stranger, the Commonwealth must prove beyond a reasonable doubt that the defendant is the person who committed the criminal act. That proof often comes through the testimony of the victim, who will point at the defendant in court and tell the jury the defendant is responsible. It is often the most powerful evidence at trial. However, eyewitness identifications of strangers are notoriously unreliable and have resulted in far too many convictions of innocent people. Fortunately for criminal defendants, they may file motions to suppress eyewitness identifications prior to trial. If a judge concludes that an identification process administered by the police was unnecessarily suggestive, the prosecutor will not be permitted to share the results with the jury.

There are several techniques used by police departments to allow victims to identify their assailants.

Photo Array Identifications

When someone reports being the victim of a crime perpetrated by a stranger, the police obtain as much identifying information about the suspect as possible. The victim will provide details about the suspect’s physical characteristics such as gender, age, race, height, and build. The police will also ask if the suspect has any visible tattoos, body piercings, scars, or other identifying marks. Based on the description of the suspect, the police will create a photo array and ask the victim if the suspect’s picture is included. Ordinarily the photo array contains at least eight pictures and all of the photos should depict individuals with similar physical characteristics. For example, if a victim says the suspect is a man with black hair, it would not be permissible for the police to create a photo array with seven blond men and one man with black hair. If the photographs are not sufficiently similar, the defendant can argue in court that the photo array did not give the victim a fair opportunity to make a non-suggestive identification.

Police officers are expected to follow procedures to limit the danger of a false identification. For example, officers are expected to warn victims that a photograph of the suspect may or may not be included in the photo array. Victims are not required to select one of the photographs and regardless of the outcome of the identification procedure, the police will continue to investigate the crime. Courts have shown preference to photographs being shown one by one (rather than all next to each other on the same piece of paper), and presented by an officer who does not know the identity of the suspect (to guard against the officer subconsciously providing hints to the victim). When a suspect files a motion to suppress a photo array identification, the court will consider whether the procedure was “unduly suggestive” in the “totality of the circumstances.” If so, the identification will be excluded from trial.

Showup Identifications

A “showup” is nothing at all like a photo array identification. A showup usually happens shortly after the crime is committed and the police take a suspect into custody in the vicinity of the crime scene. Instead of putting the suspect’s picture into a photo array with several other photographs of individuals with similar physical characteristics, the police will arrange for the victim to look at the suspect alone to identify him (or rule him out) as the assailant.

Show up identifications are horrible for suspects. As the Supreme Judicial Court has acknowledged, showups are inherently suggestive. Therefore, the Commonwealth needs to provide a good reason for why a showup was conducted instead of a photo array or some other less-suggestive identification procedure. Courts have often upheld showups by concluding they were justified because the police needed to quickly identify a suspect (or, alternatively, rule out an innocent bystander) to protect the safety of the public.

Police officers who conduct showups are expected to employ safeguards to limit false identifications. They may not express their personal opinions that they arrested the right person, and they are supposed to warn the victim that the subject of the showup might not be the suspect who committed the crime. Cops are also supposed to make believe the suspect is not in custody by removing handcuffs and limiting the number of officers who are surrounding him. None of these precautions can fix the inherently suggestive and unfair showup identification procedure. Almost every defendant who was identified in a showup should file a motion to suppress his or her identification.

Courtroom Identifications

Until recently, prosecutors could wait until the trial to have a victim identify the defendant in front of the jury. The victim would be called as a witness and the prosecutor would ask if the suspect was in court. The victim would then point to the defendant, who would be sitting at the defense table next to a defense attorney. Of course, this was the most ridiculously suggestive identification procedure of all. Fortunately, the Supreme Judicial Court recently ruled that this type of courtroom identification procedure will not be allowed when there was not a prior, out-of-court identification procedure that was not unduly suggestive. The exception to this rule is when the victim knew the suspect before the crime, so an out-of-court identification procedure would not have been necessary.

Because eyewitness identifications are often devastating to criminal defendants’ cases, it is important to consider whether there is a way to suppress the identification prior to trial. If you were arrested or charged with a crime based on an eyewitness identification, you should immediately contact a criminal defense attorney.

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