Mistaken identity

Every criminal case requires the government to prove not just that a crime occurred, but that the person on trial did it. In cases like drunk driving or drug possession, where a police officer personally observes the alleged crime, identification issues do arise, but they are uncommon. Violent crimes and property crimes, however, almost always involve issues of identification. In cases where identification is at issue, a skilled attorney can exploit a number of opportunities to weaken the government’s case.  If a civilian is the only witness to a crime, police may often rely on their identification to build a case.  The law prefers that police use non-suggestive ID procedures.  So, for example, if a witness reported that the offender had a mustache, police should obviously not show the witness an array of seven clean shaven men with only one wearing a mustache.  Yet time and again, police officers stumble in putting together a fair presentation.  We will hold them accountable when they do. 

Even worse is when police conduct a “show-up” identification, in which an officer allows a witness to view a single individual to make an identification.  Despite the wide consensus that mistaken identity is the number one contributor to wrongful convictions, Massachusetts courts still permit police to use these unfairly suggestive procedures. Johnson, supra, According to the Innocence Project, “Mistaken eyewitness identifications contributed to approximately 71% of the … wrongful convictions in the United States overturned by post-conviction DNA evidence.” https://www.innocenceproject.org/eyewitness-identification-reform/ 

Problems of mistaken identity are magnified when the identification crosses ethnic or racial lines, such as in those cases where a white witness identifies a black person as the perpetrator of a crime.  As the Massachusetts Supreme Judicial Court recently acknowledged, “cross-racial [mis]identification was present in 42 percent of the cases in which an erroneous eyewitness identification was made[.]” Commonwealth v. Gomes, 470 Mass. 352, , 382, n. appx. 10 (2015). A terrifying reality indeed. 

Contrary to what you might see on TV, police use single person or single photo identification procedures in the majority of cases — including in those cases in which police officers themselves are the identification witness.  Police identifications conducted in this manner are the most dangerous.  Not only does this type of evidence carry the risk of mistaken identification, when a police officer makes the ID, their testimony carries tremendous weight in the eyes of jurors, who labor under the misapprehension that police officers have some sort of superpower that immunizes them from the frailties which encumber the human capacity to accurately identify another person during a fleeting or stressful incident.  We do not subscribe to the perception of police as flawless observers.  Rather, we will marshal the evidence to show that police are prone to error to the same extent as any ordinary person.  Utilizing these strategies, we recently obtained the exoneration of a young man whom a highly decorated state police narcotics detective erroneously identified as a drug trafficker that had directly sold narcotics to him on four separate occasions during an undercover sting.  In fact, the fallout from that case set into motion the potential for a comprehensive overhaul in the way police are conducting identifications in this state moving forward.

If your case involves mistaken identification, give us a call.

If you or a loved one has been wrongfully accused, contact defense attorneys Murat Erkan and Ryan P. Sullivan today to discuss your options and begin the vigorous defense of your cases. During your consultation, we will discuss the allegations the government has made against you, any potential legal arguments that can be made with the information known, and begin to form a preliminary strategy into handling your case. Call Erkan & Sullivan, PC at (978) 474-0054 or send an e-mail to schedule a consultation today.