The Bad Eyewitness ID that (Almost) No One Notices

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by: Ryan • October 29, 2011 • no comments

I had a case once involving a high-speed chase. The person who led the chase got out of the vehicle, fled on foot and was not immediately found. The officer chasing him never got a great look at him. Another officer searched the car for evidence, found a driver's license in the abandoned vehicle and showed it to the original officer.

"Was this the guy?"

"Yep."

I submit that's a bad ID . It's suggestive (only one photo is shown to the officer) and it's unreliable (the officer had mostly only seen the back of the driver's head, maybe a little of sideview, but certainly didn't see the driver squarely face-forward).

But few defense attorneys would realize that the due process clause might keep the officer from identifying the defendant at trial. Why? Because the witness is a police officer, and we tend not to think of police officers even when we are alert for bad identifications.

And this isn't an unusual circumstance, especially now, with an officer's ability to pull up a mug shot on the computer in the police car. The officer sees someone flee a party, he asks for a name from the other guests, and he then pulls up the photo on the computer. Bingo!