Police Error in Eyewitness Identification Overcome by Other Evidence

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United States v. Gonzalez, (7th Cir. 2017)

At 1300, on Oct. 30, 2013, Conrad Gonzalez should have been at a supervised visit with his young daughter. Instead, he chose to rob a bank. Officers who responded to the silent alarm suspected Gonzalez and his girlfriend because they had been involved with other bank robberies.

One of the investigators printed photos of Gonzalez’s driver license and state ID card taken three years prior. He showed the photos to the teller who was robbed. The court noted the photographs were “of poor quality, grainy, dark, of low resolution and printed on plain office paper.” The teller had already filled out a form with a description of the robber. She told the investigator she didn’t recognize the man in the photos.

Although the teller failed to make a direct connection to Gonzalez, other people soon came forward to do so. After a photo taken from bank surveillance cameras was released to the media, a sandwich shop worker recognized the distinctive Chicago Bears sweatshirt worn by the robber. She had seen a new identical sweatshirt in the shop’s dumpster (located a few blocks from the bank). Police retrieved the sweatshirt from the dumpster and found $20 bills in the pockets. The robber had asked for $20 bills from the teller. (Who robs a bank and doesn’t keep the money? We catch the dumb ones!)

In addition, the mother of Gonzalez’s girlfriend called police and reported that the photo of the robber resembled Gonzalez. Moreover, she had given him an identical sweatshirt for Christmas. She told police that Gonzalez had lost weight since his driver license photo was taken and she directed them to a Facebook photo. Using the Facebook photo, the investigator assembled a six-pack photo line-up; the teller identified Gonzalez as the robber.

Investigators also turned up video footage connecting Gonzalez to the sweatshirt. Four days prior to the bank robbery, Gonzalez’s girlfriend robbed a restaurant. Gonzalez drove. Just after the robbery, he stopped to fill up the gas tank. Gas station surveillance photos showed him wearing his (unlucky?) Chicago Bears sweatshirt.

Gonzalez presented a detailed alibi for the time of the robbery. He included details of his scheduled visit with his daughter. The social worker who supervised the visits always kept meticulous records of Gonzalez’s texts, phone calls and activities during the supervised visits. Those records, coupled with surveillance video at a McDonald’s restaurant, gutted Gonzalez’s alibi.

Gonzalez challenged the identification procedures used by the investigator. The prosecution conceded that showing the teller Gonzalez’s driver license and state identification card within minutes of the robbery was both suggestive and unnecessary. The investigator had not been trained in administering a proper photo line-up (view a sample of the Lexipol Eyewitness Identification Policy for guidelines). Even so, the prosecution argued that other evidence overcame the constitutionally defective eyewitness identification procedure.

The court agreed. It held that the investigator’s identification procedures constituted “significant error,” and it found problems with the second identification procedure. Nonetheless, the court upheld Gonzalez’s conviction because other evidence of his guilt was overwhelming: “An error in the admission of identification evidence is harmless if the remaining evidence would have persuaded any reasonable jury beyond a reasonable doubt of the defendant’s guilt.”

Training and policy on proper eyewitness identification could have easily prevented the error and stopped this appeal at the beginning. Administering a proper eyewitness identification procedure isn’t particularly difficult, but certain constitutionally prescribed steps must be followed. Take the time to learn how to do it right and avoid the risk of losing an otherwise solid conviction. For additional tips on eyewitness identification, watch this on-demand webinar.)

Related: Photo Line-up Admissible, Despite Violating Eyewitness Identification Procedures

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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