Wrongful Identifications – Law Office of William J. Barabino

In order to convict a person of a crime, the government must prove beyond a reasonable doubt that the person committed all the elements or parts of the offense. For example, a person cannot be convicted of operating under the influence of alcohol (OUI), unless the Commonwealth proves beyond a reasonable doubt the three elements of (1.) operation, (2.) public way, and (3.) under the influence of intoxicating liquor.

It’s the Commonwealth’s burden to prove all the elements of the crime regardless of the crime. The elements of crimes vary depending on the crime, but there is one element that all crimes share in common. This element is identification. Anytime a person is accused of a crime, the Commonwealth must prove beyond a reasonable doubt that the defendant is the person who committed the crime. In other words, it wasn’t someone else.

Although this might seem obvious, many Massachusetts cases have addressed the problem of mistaken identification. Police use a variety of procedures to have witnesses to crimes identify the perpetrator. When there is a flaw with how that identification procedure was conducted, this increases the chance that the identification was unfair. When the procedure is unfair, this makes it hard if not impossible for juries or judges to determine if the person was actually the person who committed the crime.

The best way to explain the law on identifications is to use an example. A good example is a case decided last year by the Massachusetts Appeals Court. The name of the case is Commonwealth v. Ploude.

What happened in Commonwealth v. Ploude?

In Ploude, a man named Frank was inside a bakery in Fall River when he saw a person he did not know break into his work truck. The truck was parked right outside the bakery. Frank confronted the man who responded that he thought it was his friend’s car and that he had just taken a “bunch of pills” and was “whacked out.”

A bystander observed the interaction between Frank and the man and offered to call the police. Frank said yes and the man responded by threatening to stab him with a box cutter. To avoid escalating the situation, Frank let the man go.

Police arrived and Frank gave a physical description of the man, including his tattoos. They observed that the man had left behind a bag with various items in it, including a cell phone. Police obtained a search warrant and extracted the contents of the phone. They were able to identify the perpetrator from this information and called Frank to try and identify him from a photographic array. This array consisted of eight photos. One was of the suspect and the other seven were fillers of men resembling the suspect physically. The officer leading the array was “blind” or did not have any familiarity with the case.

When Frank was shown the photo he exclaimed that the one of the suspect was the person inside his car. Based on this, the defendant Kevin Ploude was arrested and charged. Later, his lawyer tried to challenge the identification by Frank as unlawful but was unsuccessful. Ploude’s attorney appealed the decision for him.

Why did Ploude’s attorney believe the identification was unlawful?

Ploude’s lawyer filed a motion to suppress on the basis that the way police conducted Frank’s identification was unlawful. Ploude’s main argument was that the identification was too “suggestive” and posed too high a risk that the identification was mistaken. Because of this, Ploude’s constitutional rights were violated.

Specifically, Ploude’s lawyer pointed two errors by police:

  • The officer told Frank before the identification that a suspect had been identified based on the cell phone left behind at the scene
  • The defendant was the only person with neck tattoos in the photo array

How did the Court rule?

The Appeals Court agreed with Ploude and overturned the decision of the lower court.

It began by explaining the standard of law used to determine if an identification procedure is unlawful: The defendant must prove “by a preponderance of the evidence, considering the totality of the circumstances, that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.”

This legalese essentially means that if an identification is too suggestive, it poses a risk that it could be mistaken and a mistaken identification would not be fair to the accused. For example, an identification would most likely be too suggestive if the perpetrator of the crime was a male and in a photo array a police officer showed the witness photos of six females and only one male (who was in fact the perpetrator).

Here is what the Court had to say on each error Ploude pointed out:

  • Mentioning the Phone. This did NOT make the photo array overly suggestive. The officer should not have mentioned it, but it did not have any real impact.
  • The tattoos. Photo arrays should not distinguish one suspect from all the other based on some physical characteristic. But if this happens, there are two situations when it is okay. The first is if it is clear that the witness did not select the photo on the basis of the physical characteristic. The other is if the original description of the suspect by the witness never mentioned the physical feature. Neither of the exceptions applied here because Frank’s description of the perpetrator included that he had tattoos and he never confirmed that he picked Ploude’s photo based on some other feature beside the tattoos.

Therefore, since Ploude was the only person with neck tattoos in the array and that was overly suggestive, the identification was illegal. No evidence about the identification taking place could come into evidence at trial.

Why is this case important?

Preparation is everything when it comes to successfully defending a client from criminal accusations. It is important that people who are charged with crimes hire a diligent attorney who is aware of important case law and has the legal skills to challenge evidence that was obtained by police in an unlawful manner.

The Ploude case is important because it holds police to a high standard when it comes to the way they conduct identifications. An overly suggestive identification of a suspect by a witness to a crime is unconstitutional in Massachusetts. Since out-of-court identifications are often pieces of evidence relied upon by prosecutors at trial, getting an identification excluded from evidence is an important strategy in demonstrating that there is not enough evidence to convict the accused. Keeping illegally obtained evidence out at trial is so important that it could be the difference between a guilt or not guilty verdict.



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