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Can You Challenge A Photo Identification In A Criminal Case?

Jackson & Pearland Lawyer > Blog > Criminal Defense > Can You Challenge A Photo Identification In A Criminal Case?

Can You Challenge A Photo Identification In A Criminal Case?


Police often use lineups or photo arrays to help potential witnesses to a crime identify a suspect. Such pretrial identifications are generally admissible as evidence in court unless the police used a procedure that was “impermissibly suggestive” to the point where there was a “substantial likelihood of irreparable misidentification.” In other words, if the police went out of their way to “lead” the witness to identify the suspect, that identification could be thrown out in court.

Harris County Man Receives 18 Years for Armed Robberies

The problem is that the burden is on the defendant to prove the identification was improper. The defense must show by “clear and convincing evidence” that the police improperly suggested the defendant to the person viewing the lineup or photo array, and that the police’s actions likely led to a misidentification.

A recent decision from the Texas 14th District Court of Appeals, Villanueva v. State, illustrates the uphill climb defendants face when challenging an identification. In this case, Harris County prosecutors charged the defendant with committing two robberies on the same day at the same apartment complex. Specifically, the defendant allegedly robbed two different women at gunpoint.

Houston police officers interviewed the first victim and showed her a photo array containing six pictures. The police advised the victim that the person who committed the robbery “may or may not be included within the photo array. The victim circled one of the pictures, which was that of the defendant.

At trial, the defendant moved to suppress the victim’s photo-array identification, which he claimed was tainted by how the police presented the photographs. Specifically, the officer who created the array told the victim that the suspect they had in custody was bald. The defense argued this impermissibly suggested the defendant to the victim.

The trial court denied the motion to suppress. A jury later found the defendant guilty of aggravated robbery, and taking into account the defendant’s prior criminal record, the court imposed a prison sentence of 18 years. On appeal, the defense raised a number of issues, including a renewed challenge to the admissibility of the victim’s pre-trial identification.

The 14th District rejected all of the defendant’s arguments and affirmed his conviction and sentence. With respect to the identification, the Court noted that even though an officer did inform the victim the suspect was bald, this was not the officer who actually presented the photo array to the victim. Another officer performed that duty and, in fact, that officer had no knowledge of the defendant’s appearance.

More to the point, the Court said the array itself consisted of six “Hispanic males with hair approximately the same hair color.” There was “nothing unique about [the defendant’s] photograph that would have suggested” to the victim that the defendant was the suspect in custody. Given the totality of the circumstances, the other officer’s statement that the suspect was bald did not impermissibly taint the witness identification.

Contact Texas Criminal Defense Attorney Keith B. French Today

Eyewitness testimony is often the key to securing a criminal conviction. A qualified Pearland criminal defense lawyer can assist you in cross-examining such witnesses and challenging all of the state’s other potential evidence. So if you have been charged with a serious crime and need legal representation, contact Keith B. French Law, PLLC, today.


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