Wrongful Identifications:
How Suggestive Photo Arrays and Mistaken Eyewitness
Identification Can Lead to Wrongful Convictions in Massachusetts
To convict a person of a crime, the Commonwealth must prove every element of the offense beyond a reasonable doubt. For example, a person cannot be convicted of operating under the influence of alcohol (OUI) unless the prosecution proves (1) operation, (2) on a public way, and (3) under the influence of intoxicating liquor.
Regardless of the specific charge, one element is common to every criminal case: identification. The Commonwealth must prove beyond a reasonable doubt that the defendant is the person who committed the crime—that it was not someone else.
Although this requirement seems obvious, Massachusetts courts have repeatedly addressed the serious problem of mistaken identification. Police use a variety of procedures—photo arrays, lineups, and show-ups—to have witnesses identify a perpetrator. When those procedures are flawed or suggestive, the risk of a wrongful identification rises dramatically. An unfair identification procedure can make it difficult or impossible for a jury or judge to determine whether the accused is actually the person who committed the offense.
A clear illustration of these principles appears in the Massachusetts Appeals Court decision in 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 stranger break into his work truck parked outside. Frank confronted the man, who claimed he thought the truck belonged to a friend and that he had taken “a bunch of pills” and was “whacked out.”
A bystander offered to call the police. When Frank agreed, the man threatened to stab him with a box cutter. To avoid further confrontation, Frank let the man leave.
When police arrived, Frank provided a physical description of the man, including the presence of tattoos. Officers also recovered a bag the man had left behind that contained, among other items, a cell phone. After obtaining a search warrant and extracting data from the phone, police identified a suspect. They then asked Frank to view a photographic array consisting of eight photographs—one of the suspect and seven fillers of men who resembled him physically. The officer administering the array was “blind” (unfamiliar with the case).
When Frank saw the suspect’s photograph, he exclaimed that it was the man who had been inside his truck. Based on that identification, Kevin Ploude was arrested and charged. His attorney later challenged the identification as unlawfully suggestive. The trial court denied the motion, and Ploude appealed.
Why Did the Defense Argue the Identification Was Unlawful?
Ploude’s lawyer filed a motion to suppress arguing that the identification procedure was unnecessarily suggestive and created an intolerably high risk of mistaken identification, thereby violating Ploude’s due-process rights.
Counsel pointed to two specific police errors:
- Before the array, the officer told Frank that a suspect had already been identified from the cell phone left at the scene; and
- The defendant was the only person in the photo array who had neck tattoos.
How Did the Appeals Court Rule?
The Appeals Court agreed with Ploude and reversed the lower court’s decision.
The court restated the governing standard: a defendant must prove, by a preponderance of the evidence and considering the totality of the circumstances, that the identification procedure was so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of due process.
In practical terms, if an identification is too suggestive, it creates an unacceptable risk of mistaken identification that is fundamentally unfair to the accused. A classic example would be an array in which the perpetrator is male but the police show the witness photographs of six women and only one man—the actual suspect.
On the two claimed errors, the Court held:
Mention of the cell phone: Although the officer should not have told Frank that a suspect had already been identified, that statement alone did not render the array overly suggestive.
The neck tattoos: Photo arrays must not make one person stand out based on a distinctive physical characteristic. Two limited exceptions exist: (1) it is clear the witness did not select the photograph on the basis of that characteristic, or (2) the witness’s original description never mentioned the feature. Neither exception applied here. Frank’s original description specifically included tattoos, and he never confirmed that he selected Ploude’s photograph for any reason other than the tattoos. Because Ploude was the only person in the array with neck tattoos, the procedure was unnecessarily suggestive.
As a result, evidence of the out-of-court identification was suppressed and could not be introduced at trial.
Why This Case Matters
Thorough preparation is essential to a successful criminal defense. Defendants need counsel who stay current on important case law and who have the skill to challenge evidence obtained through unlawful police procedures.
Commonwealth v. Ploude underscores that Massachusetts holds police to a high standard when conducting identification procedures. An overly suggestive identification of a suspect by a witness is unconstitutional. Because out-of-court identifications are frequently central pieces of evidence in the Commonwealth’s case, successfully excluding an identification can be outcome-determinative—sometimes the difference between a guilty verdict and a not-guilty verdict, or between a strong case for the prosecution and a case that must be dismissed or significantly weakened.
Protect Your Rights If You Have Been Mistakenly Identified
If you or a loved one believe you have been the victim of a mistaken or suggestive identification, or if you are facing criminal charges that rest on eyewitness testimony or a photo array, do not assume the identification evidence is reliable or admissible. Early legal review of the identification procedure can be critical.
Contact Attorney William J. Barabino for a confidential consultation. Call 781-393-5900 to discuss your case and available defenses.
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