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When Police Alter Evidence, That Violates a Defendant’s Fifth Amendment Rights

CrimDef9

An alarming photo alteration procedure that was used in a photo lineup during a criminal investigation in preparation of going to trial has captured news headlines for the ethical and civil rights concerns associated with it.  Reportedly, police officers investigating a number of bank robberies felt that they knew who the perpetrator was, however, because the perpetrator had a number of facial tattoos, but none of the witnesses saw facial tattoos on the individual who robbed the banks, the officers used Photoshop to cover up those tattoos – altering the photo – before presenting it in a photo lineup to the witnesses. What’s perhaps even more alarming about these circumstances is that the police officers, federal prosecutors, and police detectives/lead investigators assigned to the FBI’s task force did not feel that anything wrong was done, and even reported doing the exact same thing in a number of other investigations. Specifically, they referred to their actions as essentially “applying electronic makeup,” and called the actions both “prudent” and “appropriate,” because they were simply used to make the perpetrator “blend in—so his photo wouldn’t stand out.”

Civil Rights Concerns

In this case – as in many cases – procedures like these are not disclosed to the defense or the jury in court, which is concerning, given that eyewitness identification is problematic, on its own, even when it is done ‘properly’.  In fact, these actions were not even documented in a report. It is well established that, while eyewitness identification makes for strong testimony, it also makes for extremely unreliable evidence, and is especially prone to misidentification, especially when cross-racial identifications are involved.

Evidence like this – which has clearly been altered – should be suppressed because it violates the due process clause of the Fifth Amendment when law enforcement takes actions that result in a substantial likelihood of misidentification. It also arguably creates a slippery slope, opening up Pandora’s box to altering evidence in order to convict whomever the police and the government feel should be convicted, undermining the fundamental fairness of the trial process. The Fifth Amendment right to due process bars the introduction of evidence that was “tainted by unnecessarily suggestive” law enforcement procedures that create a likelihood of misidentification. A court must suppress evidence like this if the procedures were unnecessarily suggestive; unless the identifications were reliable under what is known as the “totality of circumstances.” Courts look at a number of factors in making this determination, such as the accuracy of the witness’ description of the person prior to procedure being conducted, the witness’ certainty and opportunity to observe the suspect, the amount of attention they focused on the person, and the amount of time that has passed between the crime and the identification process.

Contact Our North Carolina Criminal Defense Attorneys If You Have Questions

If you have been charged with an offense, the stakes are extremely high. You could very well be misidentified and wrongfully convicted in court; depending upon how the case is handled. Contact our North Carolina criminal attorneys at the Hauter Law Firm, PC today if you have any questions and for experienced legal advice and representation.

Resources:

theatlantic.com/ideas/archive/2019/08/photoshop-tattoos-oregon/596482/

abajournal.com/news/article/cops-altered-mugshot-after-witnesses-said-suspect-didnt-have-tattoos-should-id-evidence-be-tossed?utm_source=salesforce_99694&utm_medium=email&utm_campaign=weekly_email&utm_medium=email&utm_source=salesforce_99694&sc_sid=03274403&utm_campaign=&promo=&utm_content=&additional4=&additional5=&sfmc_j=99694&sfmc_s=51611007&sfmc_l=1527&sfmc_jb=202&sfmc_mid=100027443&sfmc_u=3995271

https://www.hauterlaw.com/us-supreme-court-to-hear-important-fourth-amendment-criminal-defense-case-that-could-completely-transform-an-officers-ability-to-pull-you-over-for-reasonable-suspicion/

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