Costumed Crime and Eyewitness Identification

Fall is finally here, even though we are still having unseasonably warm weather.  Kids have gone back to school, the leaves are changing color, football and baseball are in full swing, and, for the month of October at least, people don’t bat an eye to see others wearing costumes and masks.  In the post-COVID world we live in, the sight of face masks is even more common.  

But what about someone accused of a crime involving a mask?  Is our seasonal and recent culture of mask wearing making it easier or harder to defend someone accused of a crime?

To try to answer that question, let’s review the basics of the criminal case.  It’s fundamental that in order to prove a crime against a person, the government needs evidence.  One of the most frequent types of evidence is the eyewitness.  In investigating crimes, police will interview eyewitnesses, using sketch artists or photo montages to try to figure out the identity of the perpetrator.  But how can they do that if the suspect is wearing a mask?

COVID has made proving crimes harder to do with just an eyewitness.  We have seen police trying, with mixed results, alternative techniques of identification, such as attempting to match up fingerprints, shoeprints or tire tracks at crime scenes.  As video surveillance becomes more and more widespread, law enforcement can also attempt to use video to identify distinctive suspect features, such as hats, masks, hair or shoes, and then later attempt to match the arrested suspect with what’s seen on the video.  DNA is an important means of establishing identity as well.  

From the defense lawyer perspective, COVID has brought the problems of eyewitness identification into sharp relief.  Bad eyewitness ID is the leading factor in wrongful convictions, according to the Innocence Project.  Mistakes made during the identification process are responsible for 69% of the more than 375 wrongful convictions in the US that have been overturned by use of post-conviction DNA evidence.  Trying to identify a suspect who wears a mask, which is very common, is hard.  It’s a natural basis to doubt the validity of the prosecution’s evidence; after all, what if they got the wrong suspect?

Defending such cases is still difficult.  We recently had a case involving a robbery of a convenience store.  Two suspects, both wearing Halloween masks of political leaders entered and robbed the store at gunpoint.  There were eyewitnesses but none who could make an ID due to the masks.

It was a very challenging case.  Our client had kept his mask, and had shown it to several people after the robbery.  It was those eyewitnesses, not the witnesses to the robbery, that linked the client to the mask, which police ultimately found in our client’s home.  The case was a good example of the extra work involved in proving the identity of a person wearing a mask. The flip side of this is that we’ve also had cases that couldn’t be proven due to the presence of the mask.

The mass use of masks post-COVID, combined with the inherent dangers in eyewitness identification, mean that innocent people are being accused of crimes they didn’t commit more often.  The need for a strong defense in those circumstances is obvious.

Happy Halloween!

-Derek

derek@conomlaw.com