Tainted identification can result from police and prosecutorial prompting, says Fairfax criminal lawyer

Tainted identification (TI) can take place in your criminal investigation and prosecution for a whole host of alleged crimes, including sexual assault, burglary and robbery. As a Fairfax criminal lawyer, I know that your Virginia defense attorney needs to look into whether the identification of you by civilian witness(es) was or may have been tainted, and needs to know how to milk that for whatever it is worth for your defense. TI and misidentification can arise from actions running from non-intention to intentional law enforcement officer (LEO) misbehavior. No matter the cause of TI, TI can severely harm you, and your attorney must not hesitate to pursue all appropriate and lawful lines of remedy as a result.

What causes tainted identification?

Tainted identification can be caused by shoddy, rushed, or insufficiently trained or staffed police work. TI can also result from police laziness, heartlessness or vindictiveness. If a police officer tells an alleged crime victim that the officer has found the perpetrator and asks if the perpetrator is depicted in but a single photo, that is irreparable TI, in my view. The same goes for the cop’s bringing a person right to the alleged victim’s face and saying : “We caught him.” The alleged victim at that point may feel left with the Hobson’s choice of affirming that the person is the perpetrator and having the police help prosecute the person who may be (but also may not be) the perpetrator, and worrying that the police otherwise will not help.

What does the Virginia Supreme Court say about TI?

The Virginia Supreme Court’s most recent case on tainted identification relies on the federal Supreme Court’s factors for addressing alleged TI: “The Supreme Court of the United States has identified five factors in evaluating the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior
description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. [Neil v.] Biggers, 409 U.S. [188] at 199 [1972].” Sample v. Virginia, ___ Va. ___ (Feb. 8. 2024).

TI can apply both to pre-court and in-court activity

Sample specifically addresses out of court tainted identification. while its overall analysis can apply to in-court identification as well. Keys to consider concerning TI is the extent to which the TI supports barring any identification testimony from the particular witness and whether to permit evidence of any pretrial identification. Sample reminds people that “'[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary.'” Sample, quoting Perry v. New Hampshire, 565 U.S. 228,
238-39 (2012).

Fairfax criminal lawyer Jonathan Katz takes immediate charge of your defense against Virginia DUI, felony and misdemeanor prosecutions, pursuing your best defense. Your free in-person confidential initial consultation with Jon Katz about your court-pending prosecution is just one call away, at 703-383-1100.