Eyewitness Misidentification: How PA Defense Attorneys Fight Identity Evidence

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Imagine waking up to find the police at your door with an arrest warrant for you, and you know you didn’t do it and that you weren’t there and that it couldn’t be you.

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This happens a

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frankly, due to identity issues and misidentification of suspects of crimes.

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one of the main overarching things that causes this to be an issue is eye witness misidentification.

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This is one of the oldest and sometimes strongest defenses that we have as defense attorneys in court, because it is so fallible to issues and to error the human mind that many times we can ferret out issues in these eyewitness identifications in trial that make it so the Commonwealth, the prosecution, cannot prove their case beyond a reasonable doubt.

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Now, specific and individual eyewitness misidentification isn’t relied on as much as it used to be due to the advancement of of cameras and essentially placements of cameras, not only like the quality, but where they’re at because they’re pretty much everywhere nowadays. I mean, think about your own house. You probably have a ring doorbell, you probably have some cameras around your home.

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If you live in an apartment complex, they’re all over the apartment complex. So there’s cameras everywhere, every street corner you go to almost. And it’s gone are the days of just cities. I mean, this is now like even more rural areas. We’re seeing cameras on a lot of areas and a lot of homes around a lot of homes.

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So there is a bit less relying on these eyewitness identifications where there isn’t a camera angle or some sort of video of what occurred. However, it is still very prevalent and we see it frequently in court. And when we do have cases where there’s camera identification, there’s a whole slew of issues with that as well that we’re going to unpack during this episode for you.

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So this episode is all about identity defenses and how we combat that when we’re in court. And, you know, I’ll tell you, I witness, I can tell you from many times of seeing this in court, in trial, cross-examining witnesses. I witness identifications by a witness on the witness stand can really present as a confident witness, as a highly believable witness.

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And you think about that and you’re like, well, how could that be? Well, the reason is, is because these people that are testifying, they are literally in 100% belief that what they are saying is accurate because they’re recalling it from their own memory. And people do not realize that their own memory is very, very inaccurate, especially months, days, weeks, years later, recalling a specific identity of an individual or of a of a situation.

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So people are far more likely to trust their own mind than they are anything else, to trust their own eyes. But think about it. How many times have you thought you saw something and you actually were wrong? That happens pretty frequently. So I’m going to kick it over to Justin here to tell us a little bit about, let’s talk about lineups, because we see lineups a lot here in Pennsylvania.

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And I kind of want people to know a little bit about how lineups work, how the police construct them, what they mean and how we use them, and how we defend against them in court. Absolutely. So lineups, as we know they can be highly suggestive and are easily attacked by defense attorneys. There’s different types of lineups. We have live lineups where they actually bring people in, kind of like you see in the movies they’re looking through, you know, probably a two way mirror, so they can’t see who is looking at them, and they’ll pick out a person.

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They have a photo lineup, and the photo lineup can be either simultaneous or one at a time. Simultaneous just means there’s usually, I would say, 8 to 10 people on a on a page photos of them. Usually they’re black and white. They can be in color, but then you have the one photo at a time where you’re just showing a person, you know, one photo at a time.

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Was it this person? Was it this person? And those are actually the most accurate based upon the statistics. Yeah. And I was actually looking at the statistics regarding these lineups and doing some research and preparing for this podcast. And the simultaneous lineup is 11% less accurate than the photo by photo lineup that they do. Yeah. When I say less accurate, I mean that people are less likely to be correct in the simultaneous lineup, or they’re seeing everyone at once than they are with an individual photo.

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But, I mean, there’s a lot of other reasons these are suggestive, right? I mean, these need to be buttoned up, right, for them to be really effectively used in court. Yeah, I think, you know, the police procedures and the actual administration of the lineup really does matter. You know, in my opinion, I think if you’re going to do, you know, whether it’s simultaneous or one photo at a time, you shouldn’t be suggesting the police shouldn’t be suggesting things to the person.

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I, you know, trying to make the identification. Really it should be. All right. Here’s photo one. Here’s photo two. Here’s photo three. Go through all of them. And you know do you recognize any of those. Right, right. And the police aren’t supposed to be participating in if the person wants to compare photos and, you know, what do you think?

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Or this that police are not to be engaging in those lineups other than literally presenting them. I mean, many times we see things that they aren’t trying to be suggestive, but the way they’re being presenting it or the way the person engages with them, they they end up being suggested. Yeah, right. I think it’s just human nature. Right?

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You know, again, if you are an eyewitness to something and you’re, you know, the police want you to identify someone, just being in that situation alone is is stressful, right? Yeah. Especially if you’ve never had any interaction with the police or been involved. Because a lot of the times for for these types of, you know, lineups, it’s going to be for a serious crime.

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And that could be for, you know, a homicide, a robbery, different things like that. So, you know, those people are already under a ton of stress. And like you said, you know, they’re going to trust their own mind over, you know, whatever someone else ultimately suggests. But putting a little bit of suggestion here, a little bit of suggestion they’re making certain comments can certainly skew a person’s memory or recall.

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Yeah. And I think one of the things that comes up a lot in these lineups that is not intended is confirmation bias. Yeah. This is basically where confirmation bias, for those of you who don’t know, is that as a human being, we have a tendency to seek information or confirm information for which there is already a belief. So if there is any tinge of suggestion as to who this may be, then the human mind is more apt to identify that as the correct answer.

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Absolutely, even though it’s not so this confirmation bias is one of the strongest defenses, I think, that we have as defense attorneys, when we were kind of deconstructing how the lineup was set up. So. All right. Well, good. I think that’s that’s really good. I want to Levi, if you can cut to I want to show a video here of a kind of a, of a lineup that is rather suggestive.

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If you can cut to that real quick for

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All of you, turn to the left.

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The left.

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Now turn to the right. You do that, man. Look convincing. Dora.

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So, Tim, I want to

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hear from you a little bit about, you know, what an identity defense actually is and what needs to be proven by the Commonwealth. So tell us a little bit about what that actually means. Yeah. So identity defense boils down essentially to the the idea that it wasn’t the person that they have the wrong person.

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You could theoretically also argue, well, you know, they can’t prove beyond reasonable doubt that it was me. But that’s kind of an anemic defense. So if you’re employing an identity defense, the argument you’re essentially making is it wasn’t you or they have not proven that it was you. Those are the two main things. Generally, like I said, in execution, I would be inviting the jury to conclude that it was not this person, that this person has been misidentified, because if you’re going to the jury and being like, well, you know, they’re not they haven’t proven that he did it, you know, beyond reasonable doubt.

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You can’t be sure beyond reasonable doubt that it was him. That’s something juries kind of get a little bit weird with. Yeah. But I think it’s also important to note that, you know, in a jury trial, as a defendant, you do not need to actually prove right who really was right. That’s not that burden is never. We’re arguing that it wasn’t you.

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Right. Which is fair, fair game. We can argue to the jury and invite them to conclude that they have the wrong person. Right. But the jury does not have to conclude who it actually was correct, in order to find you not guilty. And so, like the standard, I think you had talked earlier about them, they have to prove identity beyond reasonable doubt.

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Well, a lot of people will say, or they think in their minds that that means there has to be a black and white 100% identification. And I’ve even had some cases where I’ve seen people, they try to move for dismissal or whatever, because there wasn’t like an in court identification. Well, the case law is pretty clear that identity can be inferred by a jury during the trial.

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Even so, they can if they think the facts are there, they can infer that this is the right person, that he’s been identified or she’s been identified, even if there are potential identification issues in the case itself, the jury gets to decide, do they believe that it was this person? And so that’s why I think I tend to think the most effective identity defenses are ones where you can say to the jury, you were inviting you to conclude that this is not the person who did it.

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I mean, obviously, I mean human nature as a juror sitting in the box, right? If they can literally conclude who it was. That’s the strongest thing, right? But that’s not required. And they’re going to be instructed that that’s not required. Right. The burden never shifts from the Commonwealth. Who has to prove beyond a reasonable doubt that it was the defendant, not that it was someone else, not that it might be the defendant, not that it could be someone.

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They have to prove that it was him. The burden never shifts to the defendant. Right. And I think that there like there are lots of ways you can make the identity defense argument and we’ll talk about like what affects the identification. But I mean, it’s not just being able to pick a photo out of a lineup or a person out of a lineup.

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That’s not what all it takes were. The only way that you can identify someone. I had a case one time that I tried. It was a theft case. It was during the days of Covid and the defendant was wearing a mask, so nobody identified this person. There were no distinctive marks or tattoos or anything. Nobody could pick this person out of a lineup.

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Nobody could say what you know in the trial, hey, that’s the person who did it. But we were able to stitch identity together based on other things, like the person got into a very distinctive car and that car was registered to the defendant. And, you know, so we were able to to put dots out there, and it was up to the jury to connect those dots.

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And in that case, the jury did. And one of the things I said was, as a prosecutor, like, thieves have been wearing masks for a long time. So like, if you couldn’t ever find someone guilty because they were wearing a mask, we would never be. We would never have convicted thieves up to this point, right? Yeah. I mean, I found that, you know, with jurors, when you have a witness on the stand who’s making an identification, that a lot of times what you can do with that witness is guide them to the point where they might have been really confident about their identification when they first sat in that witness chair.

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However, as we go through it and we we kind of cut things out of it and we, we bring up certain points that they might not have otherwise thought of or where they might be incorrect, or what might have gotten in their way of seeing it correctly, is that they kind of get to a point. They might not say it on the stand, but the jury can see it where they are no longer sure beyond a reasonable doubt that it was the defendant.

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Right. And I think that’s what, as a defense attorney in our arsenal, when we’re on cross with them, that is the most effective thing that we can do when we’re dealing with these eyewitness identifications. If we’re trying to show a misidentification. And I think to that, that to go to the previous point about photo lineups, I don’t know what your experience was like with this because you were doing this pretty recently.

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Like there’s a lot of statistics out there about the inaccuracy of identifications, but in my experience, they were the people who were doing photo lineups. They were pretty accurate and they were pretty confident in when they picked. So. And I pretty much never saw a case of an impermissibly suggestive lineup. I think I maybe saw that one time.

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I probably saw one. The thing with those, you know, like we talked about, there’s a lot of things that can be suggested suggested, but, you know, the case law and all that’s pretty clear and kind of to go back a little bit to what you were just talking about with the, the identity. And, you know, you don’t have to actually have someone identify them.

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I heard that recently, a case that you tried where you never had a witness specifically identify the defendant from the stand was held up because they refer to the defendant as the defendant. This is the person I saw, although they never pointed him out in court. Was this in in York? Yeah. Really? Yeah. I didn’t know that. So I guess I had a case that went up on appeal.

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Yeah. An interesting. Well, seeing that proves the point. Did he get did he get a firm. It got a firm on appeal okay. Because because it can and I and I mean I had this a lot of this case law on point because I remember the case you’re talking about that there was an issue of it. But like you know with photo arrays nowadays the photo array is generated digitally.

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If they do it that way, like it used to be, that you had to kind of pull photos, composite photos out of like a binder or something, but now they can use the digital database. It’s like all the photos or yeah, driver’s license photos. And I don’t know what that acronym is, but it also takes mug shots. So they’ve got the database of like all these.

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And they, they can use facial recognition to pull photos that are similar to the to the photo of the defendant. So a lot of times we’re seeing photo lineups that are done digitally like this. And those are some of the best lineups that you could get because they’re actually like they’re pulling other individuals who actually do look like the suspect.

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Right. And if they’re still pulling the suspect out, that’s really bad, right? It’s because they’re using technology to make these kind of hard to surpass, like hard to challenge because they have to be reasonably similar. Yeah. And so they’re using their they they’re using a digital program essentially to homogenize all the suspects. And that means you could, you could it would theoretically be the easier than it’s ever been to identify the wrong person.

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Yeah. It’s funny you mentioned that because with the advancement of technology now, and actually we’re going to get into how they’re actually using AI to do this. And with facial recognition technology and actually how sometimes that’s faulty and leads to lawsuits because people are getting picked up. But we’re going to go into that. But there used to be a room.

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I don’t think it’s down there anymore at the York County Prison that they would do lineups at, like they literally had a room dedicated to it, and it had the cool little backdrop and like you see on movies and stuff, but I’m pretty sure they did away with that when technology started advancing, because I think by and large, they’re doing lineups now mostly digitally.

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Yeah, I don’t think I’ve ever seen an in-person lineup where they had like, you know, the usual suspects up there. I don’t think I had a single case where that was done. Did you ever see that? I don’t think so, yeah, I don’t I think they stopped doing it almost like a decade ago. And what they’re doing is they’re doing a digital lineup where, like I said, they’re pulling these photos from all these databases.

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They all look like the same person. And they’re they’re putting that in front of the person. They’re saying who who did it, and they’re circling the picture of the person they think and they’re initially it. And they will ask sometimes as a follow up, like, how sure are you on a scale of 1 to 10 or like what percentage?

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And the person may even write that or something on the on the lineup. I’ve seen that before. I had one, I don’t remember what type of case it was, but there was a line up. Like you said, they circle, it initialed and it’s at 70% and every single one wrote it on there. Yeah. Oh, wow. Every single one of those is is discoverable.

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So if they do more than one and I’ve seen cases where they did one and the person got it wrong, and then they did a second one right sometime later and they got it right. Well both of those lineups are admissible now and they’re discoverable. And that’s just ratcheting up our defense ability there, you know, to to defend our clients.

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And you know, I really think some of these lineups are even more beneficial to the defense than they are to the process. That’s why we were always told, be very cautious about doing a photo lineup. Yeah. And I honestly, I still see him, but I don’t see him as much as I used to see them. Yeah. You know, and I think some of it is they have kind of gotten wise to the fact that the human mind does many times make a misidentification.

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And the moment that happens. Yep. They’re locked into a pretty defendable case at that point, you know. Yeah. If somebody misidentified somebody in a photo lineup, I mean, they like that is that’s it’s almost deadly to a case. Now, I have seen some cases where the person’s been misidentified, but you can explain the misidentification. I’ve seen that too.

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And and that, you know, that brings it back to a toss up. Still muddies it up though. Yeah. You know it does. So okay. Well let’s let’s step away from lineups a little bit. You know, and let’s talk about factors that can affect the actual identification on scene like when it’s happening. Right. And this is what the person is recalling when they’re back in court months, a year later when they’re actually on the stand.

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What are some of those factors? Well, let me kick it to you. Tell me about some factors. Yeah. So definitely obviously what’s the lighting situation. Is it, you know, 6:00 in the morning. Still a little bit dark. Is it 930 at night or

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midnight. And it’s pitch black. Is it the middle of the day? So light, bright sun even.

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You know, if you’re driving, is there a glare? Obviously distance. So if someone has eyesight issues, whether they’re nearsighted or far sighted. And I actually when I was 16, I had my I just gotten my license like two weeks into it, I was driving my mom’s car, going to my high school girlfriend’s house, and when you leave my mom’s house, you went down a little bit of a hill.

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There was a stop sign, and then at the next intersection, it was two lanes both ways. But the stop, excuse me, the stoplight for the two lanes that it intersected with were just on a telephone pole. And so I actually had a green light, went through the intersection, truck lasted through, plowed me, totaled the car, and I ended up getting cited for running a red light because the other guy that hit me, you know, told the police that I ran the red light, etc. and I went, I pled not guilty, went to the hearing, and they had a guy who was 112 years old.

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His glasses were like an inch and a half thick. And he’s like, I was up at the second stop sign, saw him run the red light, and I had got three points on my license when I was 16. That was like, ever since then, the distancing in eyesight, you know, you got to be careful about

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that because, I mean, we’re talking about these light factors.

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A lot of times when I think about a misidentification, I’m thinking it was probably too dark for them to see. Right. But a lot of times in these traffic things, I mean, think about I want everybody out there to think about your driving around and it’s like kind of maybe five, 6 p.m., six stuns, not quite setting, but about to set.

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And you come up on that light and you literally can’t even see the light because you’re blinded by that sunlight coming into your face, coming into the car. I mean, that happens all the time. So we’re not only talking about it being too dark sometimes we’re talking about you couldn’t see because the light was in your eyes.

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Well, and when you’re driving to like, especially if you’re, you’re driving and there’s something going on, you know, it could be an accident, could be another crime. You have to be paying attention to so many different things at that point. Right? Like, so you’re on the road, you’re paying attention, right. So there could be a number of things that cause a misidentification there.

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Opportunity to observe, you know, what was your viewpoint? Not only distance but again, glare. Is it a dark room however you want to put that right. And the distancing is interesting because a lot of times, you know, we definitely are going to talk about distance. How close, how far were you. But that’s kind of variable too because sometimes you can be really close.

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But you’re, you know, farsighted or you’re nearsighted, right. So you could have some issues up close, whereas far back you might not. So that comes into play to like what is that person’s medical eyesight. Yeah. Right. And sometimes that’s very challenging. Well do like you said, the 112 year old guy like glasses that thick. Was he wearing him was he not?

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I think another thing with distance that’s important to when I was in the DA’s office, I had a case that was a it was a fleeing case and the car never actually stopped. The officer never even got out of their car. They had pulled up. The guy stopped, and as they were about to get out of the car, the guy took off.

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And one of the issues that the defense had raised, the trial was like, well, how could you have seen him? You know, essentially they had passed each other going opposite direction. So the officer is like, well, you know, I saw it from my car. Could have been, you know, 50 yards away. When you hear that out loud, it sounds super far.

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And like, how could you ever see that? But think about when you’re driving 50 yards because that’s like a football field or not. That’s half a football field. Yeah. But depending on the lighting and, you know, the time of day, if there’s no, you know, sun in your eyes, there’s no glare and nobody has tin on their windows.

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You can actually if your eyesight is good, you know, you can see someone coming the other way. So I think that was that was a hard one for me when it first got brought up, because I was like, oh man, how do I address this? And then I thought about it a little bit. It’s like, well, if your eyesight is good, there’s, you know, that’s what you’re focused on.

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Is that person driving? I think it’s very reasonable that a jury can conclude that, okay, they actually saw who this was more more pressing, I think to that point is the fact that there are tons of studies done that show that people are notoriously bad at estimating distances. That’s true. So, like the guy can say, I saw him from with, you know, 50 yards away, but in reality he was like 20 yards away or a hundred yards away.

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So like that’s another way distance becomes a factor is you can you can convince witnesses or potentially plan a bug in their ear as a defense on cross that they can’t really be sure what the distance was. And then your argument is they don’t really know about how far away they were. How can they be sure that they actually saw this person?

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Right. One of the ways I love to plant this for a

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witness, and really for a jury, is

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when you’re in the courtroom and you’re I. What I start with is I use like the area of the

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courtroom. And I say, you know, do you think it was like from here to the jury box or from here to the back of the courtroom?

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And when they when they agree with you forever, how ever much it was, you got to premature these areas, by the way, before you do them. But then you say how far do you think that was? How far do you think you were? You plant that later in the testimony and say, oh, 30 yards, and then you actually break out the tape measure in front of the jury and you measure it and it’s not even close.

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Yeah. What’s that? Me with Joe Pesci, the My Cousin Vinny, my Cousin Vinny. Yeah, that’s the scene. And yeah, I mean, because a lot of identity stuff is identity, but that’s that’s very believable to a jury. I mean, that’s that’s real world stuff that makes sense to a jury. And one thing that we didn’t mention earlier is that identifies is always at issue.

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Now, like the factors we’re talking about now may or may not affect whether you have a viable identity defense claim. Because like one of the factors that’s on the list here that we’re that we’re going through is prior familiarity. A lot of cases that I dealt with where the person was supposed to make an in court identification, we’re asking them to tell the jury who did this thing, and they know the defendant from a from a relationship.

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It’s a family member or somebody they’ve had a lot of dealings with. It’s a spouse. It’s a it’s a domestic partner or something like that. The odds of you miss identifying that person go way down. Oh yeah. Because you know that person. Right. And that’s that’s you know, that’s one of the factors, familial familiarity with the individual like way down almost to 0%.

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I mean, I had a case where there was an identity issue where the it was a domestic case guy communicated a threat to the victim via Snapchat. And there was no video. It was it was just all audio. And that victim was able to identify the defendant by voice alone. And juries understand when you’re intimately familiar with someone, you recognize their voice.

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So these are all things that affect identification, too. I’m always skeptical when I see stats about like the inaccuracy of witness identification, because there are so many things that go into it. And from my experiences, the vast majority of cases I’ve seen where someone’s identified it’s it’s pretty close to accurate, I think, more than anything. Yeah, yeah. Jimmy, tell me a little bit about like, when we’re dealing with the stress of seeing a crime, right?

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That in and of itself is a factor that plays a role in their ability to recall and identify. Is that stress, which also plays a little bit into the opportunity to actually observe. Tell me about that a little bit. Yes. Stress. And I would actually lump this in with the next one too, if you don’t mind, because I think this is all part of it.

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Stress is, like I talked about in the self-defense episode, this concept of tacky psyche, when your heart rate, heart rate elevates over a certain beats per minute, your body starts doing weird things. And there’s all kinds of of stress, obviously, what we consider to be stressed. But there’s also physical phenomenon that that begin to happen auditory exclusion, tunnel vision, high blood pressure, loss of fine motor skills.

00:26:41:02 – 00:27:11:06

These are all things that come with stress. We call it stress. It’s kind of the umbrella term. You should have been a doctor. Yeah. Well that was all stuff that we learned in like combat training and stuff. But but stress is something that can hinder your ability to observe because like I said, I mean, even take tunnel vision, for example, if your tunnel vision is forcing you to fixate on one object, but the actual crime is occurring potentially outside that cone of vision, you’re going to be more prone to identify things that you’re focusing on.

00:27:11:13 – 00:27:36:00

And the person who maybe like responsible, maybe escaping your attention because you’re tunnel vision. Same thing with auditory exclusion. If you’re only hearing the the other person beside you screaming hysterically, you may not be hearing the voice of the person who is threatening somebody or something like that. So and another thing that adds to stress is whether there’s a weapon presented, if you’re staring down the barrel of a gun.

00:27:36:01 – 00:27:44:29

Yeah, I want to I want to cut over to prudence here to talk about that whole weapon distraction thing. So let me, prudence, tell us a little bit about the weapon

00:27:45:06 – 00:27:49:13

distraction. Yeah. I mean, it’s it’s scary.

00:27:49:17 – 00:27:58:26

Imagine, you know, you’re we’ll use a robbery, for example. You know, you’re you’re the clerk at a gas station or, you know, working in a grocery store.

00:27:58:26 – 00:28:15:23

Someone comes in, hood up, mask on, and, you know, they got their hand in their pocket. They come up to you and just point at gun in your face and say, you know, give me all your money. Right. That’s, that’s that’s scary. And like you talked about earlier with the again, not to cut him, but where are your eyes looking when someone points a gun at you?

00:28:15:24 – 00:28:37:17

Probably down the barrel. Yeah. Down the barrel. And you’re panicked as hell. So, you know, really, you know, when we talk about identifications, when a weapon is present or even pointed at you. Yeah, but it can be just present. Like people will gravitate towards looking at a weapon because of safety reasons. Yeah. If it’s just there. Yeah. So that identification can really become an issue.

00:28:37:17 – 00:28:54:08

The, the stats show that the level of proper identification or accurate identification go way down when a weapon is literally just present. Yeah. I had it was a robbery case at a Senate. This guy actually had had two robberies. It was a Co and I think he robbed like the smoke and chill here and here in the city.

00:28:54:08 – 00:29:17:10

And the woman that was the clerk at the Sunoco, and it had been probably 3 or 4 years since, you know, the incident to when we were actually getting ready for trial. And I brought her in for a witness prep, and she remembered what he was wearing. But when we showed her a photo or some of the surveillance video, I forget exactly.

00:29:17:10 – 00:29:42:14

She was like, I don’t recognize his face. Yeah, and that’s not something you want to hear as a prosecutor. That’s great for defense. We ended up working out a plea deal for him, not just based on that, but let’s be clear about this from an evidentiary standpoint. As we said before, when a witness says they cannot make that identification that is discoverable and that is required under Brady to be turned over to the defense.

00:29:42:16 – 00:29:59:22

Yes. And that is gold when it comes to defending cases. I mean, when you literally have the witness saying, I don’t think it was that guy. Yeah. You know, not even just doing a lineup, but they’re actually looking at the guy. They’ve already the police, maybe for whatever reason, have already said, like, this is the guy, you know, does it look like the guy?

00:29:59:22 – 00:30:15:12

And they’re saying, I don’t think that’s the guy, right. But more often than not, and it sounds like in the case that you were talking about, you didn’t have the person saying, like, I don’t think that’s him. You were saying, like, I don’t, I don’t remember, I can’t remember, I can’t recall if it was him. Yeah, I will say that.

00:30:15:13 – 00:30:32:05

Like I said, there were other factors that went into to plead in that case out. You know, like I said, she remember what what he was wearing. She’s like, I, you know, I can’t say that’s him or whatever it was. But overall, there were other issues with her testimony. Right? The other case was a lot stronger. So we ended up packaging them up.

00:30:32:05 – 00:30:47:05

But were you able to in that case, were you able to figure out if that guy had that article of clothing? I imagine a search warrant was executed. Yeah. They found his clothing. Well, that can tie it up pretty good. That. Yeah. Yeah. You almost don’t need an identification. Yeah. He, he, he wore similar clothing in both of them.

00:30:47:05 – 00:31:08:26

I think he wore the same hoodie but changed his shoes and his pants. But like I said, just as a prosecutor, I think you guys all know they’re just when you, you talk to certain witnesses. And even though you may not need all of their testimony or all their original statement, putting them on the stand or putting anybody on the stand is always a risk.

00:31:08:29 – 00:31:24:11

Because even if they remember certain things, or there’s other pieces of evidence that tie together, if they completely fall apart, that could tank the case. So like I said, they were there were other reasons for that. But I mean, he still got a significant state sense. I think we pled to like 5 to 10 or 6 to 12 years.

00:31:24:18 – 00:31:42:08

So it’s common in robbery cases because, I mean, these people are wearing clothing over themselves like they’re wearing multiple layers a lot if they’re smart or if they’re even basic, they have basic common sense. They’re wearing masks. And like, I had a robbery case where articles of clothing were. Yeah, I mean, usually they are almost completely obscured, right.

00:31:42:10 – 00:32:01:10

Like you can’t see them. Well, one of those I, I’m sure this has come up for both of you guys at some point. I saw it a few different times over the last year doing, you know, a bunch of trials and sitting in all the other trials. There was one where this guy mid trial shaved his entire face and cut his hair, and he had like long hair and he shaved his head.

00:32:01:11 – 00:32:20:06

Oh, I heard about this. Yeah, yeah. And, and I’m pretty sure they got an instruction that that was consciousness. Consciousness of guilt. Yeah they did, they did. So, you know, I actually remember that case when it came up and yeah, he like, I think he like, shaved his whole body or something or something crazy. Something something crazy. But, I mean, he drastically changed his appearance from one day to the next.

00:32:20:06 – 00:32:35:20

And, I mean, even without an instruction, I’d be arguing, you know, look at this guy. Like, what do you think he’s trying to do by doing that? Right, right. There are I mean, that’s pretty common that defend a lot of defendants. They look a certain way when the crime is committed, but by the time trial comes around, they will alter their.

00:32:35:23 – 00:32:52:22

Let’s be clear. If you go drastic, yeah, you’re going to get screwed in the end because you’re going to probably get that instruction and, you know, the Commonwealth is going to ask for it. So as a defense attorney advising my client in that situation, well, there might be some changes you make. If you go way drastic, it’s you’re hurting your you got to clean yourself up, look presentable.

00:32:52:24 – 00:33:06:18

Yeah. I mean, because you’re gonna be in a courtroom. Yeah. I mean, if you have shoulder length hair or a huge beard at the time of the crime, and, you know, it’s been a few years and you show up the trial the first day looking the same, and all of a sudden you’re getting identified, and you come in the next day and you got a shaved head, no beard.

00:33:06:24 – 00:33:27:28

Yeah. Well, and I and we’ve said this before, but I don’t know, like I didn’t know where a good place to bring this up is. But I guess now is, is a decent spot. Is that like, you can also be identified by distinctive features like, like if you have tattoos, if you have tattoos for example. And so, so a lot of defendants don’t realize that during a trial you can be compelled to display your tattoos to the jury.

00:33:27:28 – 00:33:47:15

Yeah, yeah. And you can also be compelled to give like a voice exemplar as well. So like these are things that you can like, I’ve seen cases where defendants have been ordered to stand up at the, at the defendant’s table, roll up their sleeves. Yeah. It’s a monster of evidence because that’s something non testimonial as we said. Think about like I mean this is not that exact example.

00:33:47:16 – 00:34:12:20

Think about like everybody knows this one, the O.J. trial right where he got up and tried to put the glove on. Yeah. That’s demonstrative evidence that ultimately played in his favor. But in court, that plays out in a lot of different ways, right? It can be show us your tattoos. It can be, you know, you know, stand up and stand, like, directly in front of the jury so they can observe your physique, because usually the defendant is actually seated kind of far away from the jury in the room.

00:34:12:22 – 00:34:32:29

I mean, not horribly far away, but they’re not right against the jury table. And that’s how courtrooms are set up. I don’t know, they’re fleeing case, actually, where they were trying to say it was this guy’s brother that was actually the driver of the vehicle, and we ended up getting photos. He was actually locked up at the time, the brother, but we ended up getting photos, like the photos and driver’s license photos.

00:34:32:29 – 00:34:51:13

And he actually had a very, very distinctive neck tattoo. And our guy did not. And although the officer again, this is another one where the guy kind of like pulled into a gas station and took off, the officer was very clearly able to say that they did not observe any neck tattoo. You know, they were they were close enough to see that.

00:34:51:13 – 00:35:11:19

So ultimately that one played out in my favor. But it was definitely it gave the jury something to think about, something that defendants also don’t get. Like, I’ve had a few cases where where clients have come in and they want to raise an identity issue in a flight case, for example, is the one that jumps to my mind and it’s like, but how are we going to make that argument when the police caught up to you?

00:35:11:22 – 00:35:32:00

So like, you want to argue that it wasn’t you, but the police caught you, and then the police pulled your wallet out of your pocket and identified you based on your ID, they compared the ID that was in your pocket to your face. That officer is going to be able to say, that’s the guy. Yeah. No, absolutely. Do you not understand that?

00:35:32:01 – 00:35:49:27

I had a case almost spot on to that a couple of months ago where a guy was pulled over. He I, the police talked to him like in the car. He gave his license. And then, you know, the cop comes back up to the car, and when the cop came back to the car, he ran on foot, right, like into the woods.

00:35:49:27 – 00:36:05:02

And the cop tried to chase him, didn’t catch him. And then the guy wanted to come to me and be like, well, how are they going to prove it was me? I’m like, dude, you’re on video for one. And secondly, the cop can literally get on the stand and say, I saw him and that’s him. I was about, you know, ten inches from his face.

00:36:05:04 – 00:36:27:07

Some of these cases, it’s like, you know, you hate to be mean to the clients. Obviously you gotta be real. But they’re they’re coming in and they’re like, what they’re essentially saying is we should go in front of a jury and we should say, hey, guys, the police were chasing somebody that wasn’t him. But he also he also happened to be running away at the exact same time for unrelated reasons.

00:36:27:07 – 00:36:44:06

And when they caught him, they caught this guy, but they didn’t realize that the real culprit had gotten away somewhere else. In my case was a little different. My case? The guy runs and they didn’t catch him that right, but they had previously identified, so he would have to argue that a doppelganger was driving his car and his license.

00:36:44:07 – 00:37:03:29

Yeah. Yeah, exactly. And that’s why I had to break it down to him, because his whole thing was like, well, they never actually arrested me because they never caught me because I got away. I’m like, yeah, but they’re going to be able to identify you on the stand. No jury is going to believe it’s totally unbelievable. Right. And I mean, and again, they’re even going to be able to you got to keep in mind to like he’s going to be sitting in the courtroom.

00:37:04:00 – 00:37:18:26

Right. So the cop is going to be able to look at him in real time and say, yeah, I’m absolutely 100% sure that’s. And if they really wanted to be crafty, I mean, if they really wanted to be crafty, they could they could take the picture of whatever car this guy drove the court in if like, if they knew where he parked.

00:37:18:27 – 00:37:35:00

Right, right. And then they could take they could say, hey, like same car. You know, he drove the he drove this exact same car to the court this morning. Right. Same license plates. Yeah. Yeah yeah. No. Yeah. Absolutely. Yeah. That stuff does come up kind of rarely because most people are smart enough to realize that that isn’t going to work.

00:37:35:00 – 00:38:01:24

But sometimes you gotta you gotta explain it to people why their idea of a good defense is not actually a good idea in these identity situations. Okay, Albert, tell me a little bit about cross racial identifications and how those sometimes become a little bit funny or funky and, you know, identifying someone that is not of your same race can actually be far more challenging for a number of different reasons.

00:38:01:24 – 00:38:27:05

Talk to me about that. Yeah. I mean, there’s a lot of studies that that I mean, I think that’s pretty much it. I mean, the general point is that it’s sometimes is hard to identify someone that that is not in the same racial category as you. And there are lots of ways that this has been demonstrated, whether it’s being able to identify different subsets of like Pacific Islanders or, you know, any number of other ethnicities or race racial groups.

00:38:27:06 – 00:38:47:02

It there’s a lot of evidence that seems to support the idea that people sometimes do have difficulty identifying people across racial and ethnic lines, right? Yeah. And, you know, we were talking about this earlier with people, you know, having disguises when they are committing crimes even, and then ultimately,

00:38:47:05 – 00:39:06:10

you know, buttoning up or changing their facial hair, growing in facial hair, getting rid of facial hair, growing out their hair, sometimes even going to the extent of getting tattoos in between when the trial actually happens, and how different jury instructions can be given as a result of that.

00:39:06:10 – 00:39:23:19

So you have to be really careful with that. I want to cut over here to Gary. If you could tell me just a little bit about kind of that whole idea of disguises and changing your appearance when you get to the point of actual trial and what that really does or how that could help you or maybe hamper

00:39:23:24 – 00:39:40:29

Yeah, I definitely think it’s going to hamper you. Yeah. Like we talked about, you know, if you show up to trial looking pretty much exactly the same way you did, or very similar to when the crime was committed and someone identified you, then you’re identified a trial and then you, you know, leave the first day and come back the next day and look completely different.

00:39:41:02 – 00:40:02:10

That’s not a good not a good look, right? Additionally, again, we talked about people wearing masks, different things, but people that go out and commit a lot of these crimes aren’t really thinking about the after effect in the sense of, you know, the gas station robbery I was talking about. The guy had like super bushy eyebrows, pretty identifiable.

00:40:02:13 – 00:40:28:10

And again, different things like that where even though people are going to wear hats, mass gloves, cover up tattoos, whatever, they’re probably going to forget something that identify them, identifies them. Tattoos are definitely the biggest one. I’ve seen weight change a ton, although there have been a few times where, you know, 3 or 4 years down the road after a crime was committed, someone comes into court and you’re like, I don’t even recognize that person.

00:40:28:11 – 00:40:43:13

And that’s usually a time thing. Like, although now with all these weight loss drugs, I mean, I guess, you know, it could be done a little bit quicker. But yeah, I don’t see that a lot unless the case is really dragging out. Yeah. Really taking it to get to trial with a bigger cases. It does though sometimes. Yes, yes.

00:40:43:13 – 00:40:48:05

So okay. I want to talk a little bit about fun topic of

00:40:48:08 – 00:41:31:01

kind of sketch artist renderings. We see this sometimes in cases where somebody sees a crime occur, or maybe they’re the victim of a crime and they are, you know, later trying to identify that person. And they bring in people who are highly trained, professional sketch artists who attempt to get information or extract information of the identity of that individual for the purpose of drawing a sketch of that individual, which are sometimes significantly very accurate, and they carry a great likeness to the actual underlying suspect that is ultimately later caught many times as a result of this sketch artist rendering.

00:41:31:01 – 00:41:59:11

And again, I want to be clear, the people that do these, they’re not just pulling them off the street, they’re not going to the carnival and grabbing somebody who draws those pictures that you all see and with your kids at the carnival and that you hang up in their room. These are people that are trained specifically for this purpose, and they’re going to get very detailed and be very detailed in their sketch, actually, where we can attack this sometimes, though, as a defense defense attorney, is that what you’re really doing there is you’re kind of playing

00:41:59:14 – 00:42:02:01

that that kid’s game of whisper down the lane.

00:42:02:02 – 00:42:26:01

You’re dealing with somebody who saw something and isn’t currently seeing it, but is recalling it from their memory and is kind of whispering it down the lane to the person who didn’t see it, who was then trying to put it on paper and interpret what that person is describing to them. That can be a very good angle for challenging, and I think most jurors understand that that is a challenging thing to do.

00:42:26:03 – 00:42:42:22

Even artistic jurors can sometimes understand how challenging that can be. I actually want to, Levi, if you can play the video of a very accurate sketch artist that did a very good rendering of a suspect, that ultimately turned out to be accurate.

00:42:42:27 – 00:43:08:22

say this sketch, the best sketch ever, in my humble opinion, helped an investigator identify a man who is suspected of theft from a Pennsylvania farmer’s market. In a statement, police said, quote, while the sketch provided by the witness may have appeared amateurish and cartoonish, it, along with the distinctive physical descriptors, jogged the memory of at least one investigator to provide a potential suspect name.

00:43:08:23 – 00:43:26:13

Lancaster police said he appeared to be an employee before stealing an undisclosed amount of money from a stand inside Central Market last month. He has not been arrested in Is facing two counts of theft. About that sketch, Matt. Yours for CBS Philly.

00:43:26:13 – 00:43:46:03

All right. Thanks. Yeah. I mean, that one is spot on. I mean, that one is really good and ultimately did show and lead to, I believe, the conviction of that individual. So. All right. Jimmy, I want to run over to you here just to discuss a little bit about surveillance cameras and how. I mean, we’re seeing that so much now, right?

00:43:46:04 – 00:44:06:21

Surveillance cameras everywhere. We talked about that here. And there’s so many different types of surveillance cameras. So tell me a little bit about the types and also the issues that can come up with surveillance cameras when they do arise. Yeah. So I mean, I think surveillance cameras is more common than like the sketch that we’re talking about. Sketch artist.

00:44:06:23 – 00:44:31:28

Like, I don’t think I’ve ever seen a sketch artist case, to be honest with you. So, like, that’s something I think that just generally has kind of gone the way of the dinosaur surveillance cameras, though. Very common. Pretty much every case is going to have some sort of camera. That’s almost an expectation nowadays. And this could be ring camera, it could be store footage, it could be camera footage from like a captured like, like if it’s a video call or something.

00:44:31:28 – 00:44:54:29

Because that’s common. We see in cases people will video call people and maybe they’re making threats over the video call or they’re live streaming or videoing as the crime is being committed. That’s a way that people can be identified by video drones. I haven’t seen many drone cameras. Generally, the drone footage that I saw in my cases dealt with observing the execution of a warrant.

00:44:55:07 – 00:45:16:28

So law enforcement is using drones, I think, in fleeing suspects, apprehending fugitives or executing warrants. Right. And they’re doing that actually to, you know, benefit them in real time, right. If that person does tactical issues. Yeah. So they can track them. And now with drones being as good as they are, I mean, these are highly advantageous tools to law enforcement, you know, that actually get brought up in trial and get played out.

00:45:16:29 – 00:45:36:01

Yeah. You know, I don’t see many cases where drones will be used to identify someone necessarily, but they could be. And the other big thing that we see is obviously body cam and dash cam, which is pretty much every time you see in like a, like any kind of traffic stop. I tell people all the time because retail theft probably is subject for a future episode.

00:45:36:01 – 00:45:57:02

But like a lot of retail theft, people that I talked to, especially when they’re just kind of maybe it’s their first offense. I remind them like, hey, be mindful. It’s kind of an IQ test. If you go into Walmart and you’re going to shoplift from Walmart. Walmart has great cameras, great cameras. So like, their cameras are going to be like they’re and they’ve got people watching them pretty much all the time.

00:45:57:02 – 00:46:13:23

And so what happens is they’re going to see you doing something suspicious. They’ll see you putting something in your pocket or whatever, and then that camera is going to zoom in on you, and it’s going to watch every single thing that you’re doing. I’ve, I can tell you from many, many cases that I’ve done that these cameras like in Walmart.

00:46:13:25 – 00:46:35:23

Yeah. Target some of these cameras that you would think, oh, you know, they just deal with so much that they’re, they’re putting a ton of money into this stuff. They can follow you around the store. You can zoom in on your like enough to see your debit card number. Yeah. Right. Right. And and I’ve actually seen the retail establishment cameras these significantly better sometimes than literally cameras and banks.

00:46:35:25 – 00:46:52:03

Yes. That people cameras are actually ATM cameras for sure. I mean ATM cameras are garbage a lot. And you would think, what the heck. Why? That doesn’t make any sense. I mean, someone who’s stealing an $8 pack of whatever or a candy bar, and then the guy who’s stealing 50 K from somebody who just used the ATM. Yeah, yeah.

00:46:52:04 – 00:47:09:28

I mean, these cameras are like a world of difference. Yeah. And I’ve seen cases where with Walmart, where they are pulling the footage from a theft, where they stop somebody at the door. Right. They’re pulling that footage for police. And while they’re reviewing that footage, they spot someone committing another retail theft in the footage. And so this person that they never interacted with.

00:47:09:29 – 00:47:24:16

Right. They’re now pulling that footage and giving it to police and saying, by the way, this person on the footage also committed a retail theft. And now that person’s getting charges in the mail. Yeah. And guys, for purposes of retail theft and I agree with you, Tim. We are totally going to do an episode on Real Theft because we see a ton of it.

00:47:24:16 – 00:47:46:02

We defend a ton of it. It is a actually, even though it’s many times buttoned up in the prosecution, there are ways to mitigate and defend those cases and fix them for people. And we do that with a ton of frequency here. But I will tell you, think about when you go to, you know, check out. Right. And now a days all these places have self-checkout.

00:47:46:02 – 00:48:07:05

And I’ll tell you the advice I give all my clients who I talk to you about this do not go through self-checkout. You are far more likely to accidentally under ring something or not ring something up and you get people are getting charged for that because think about those cameras. They are literally in your face. They can see your nose hair in those cameras like they’re that good.

00:48:07:05 – 00:48:21:25

And like Justin said, they can see your debit card number and some of these cameras, what do they call it, like the Shoppers Club cards, you know, like, well, that’s how a lot of these people, that’s what I was going to say. You know, people think that, oh, I can just we see the under ring thing a ton.

00:48:21:26 – 00:48:37:28

Yeah. Right. There’s not a lot of people unless I think we see I think a lot in like addiction and people that are just trying to like make a quick buck by stealing like meat, seafood, etc. and then selling it on the street, which I didn’t realize how common that was. Apparently. It’s like way too I got to cut in here and tell you a story.

00:48:37:28 – 00:48:47:28

I had I had a case I defended years ago where the guy. This is kind of off topic, but the guy stole a bunch of, like, steaks

00:48:48:01 – 00:48:59:29

and shrimp and ham and like, like meat. You know, and like seafood. And he was literally, like, lining his his, his upper torso and lower torso with meat. That’s hot. Yeah. It was.

00:49:00:01 – 00:49:14:14

Yeah. So he ends up like they’re like, all right, this ain’t right. And they end up catching on to what he’s doing in the store. So they confront him. And this is a this is a smash and grab. This is the one where he’s actually this is an under ring. He’s going to run out of the store with all the meat stocked into his pants.

00:49:14:14 – 00:49:31:18

And they so they called the police ahead of time and they ended up the police showed up and they ended up literally chasing him out of the store. And they went to tease him. And the Taser promised to meat couldn’t actually connect to him because it went into the meat and started cooking. The flash cook his steak. It’s

00:49:31:18 – 00:49:33:03

like it’s like medium rare.

00:49:33:04 – 00:49:52:27

Yeah. I mean, so this guy’s running and the taser has literally no effect, and stakes are flying out of his pants like it’s a comedy of errors. Man. It was it was interesting. And that’s hilarious. I mean, we ended up pleading that case out and we work something out for him. We kind of got him some treatment, but it was I remember sitting in that meeting with that guy and thinking, I love my job.

00:49:52:28 – 00:50:11:04

Like, this is just an awesome like, yeah, there are some definitely. I think there’s definitely some like good retail theft stories out there. Yeah, they’re all over. But I mean, the point the point here is, you know, cameras are great. Yeah. You know and cameras are great. They’re wonderful. And you can bet your bottom dollar, if you’re trying to do something in a retail store, you’re probably going to get caught.

00:50:11:05 – 00:50:36:17

I know a more serious note, obviously, because, like, I had a homicide case one time. Yeah. Tell me that where video was good, but it was being pulled from a lot of different sources. So the homicide occurred in such and such a place. There was there was camera from the establishment there that caught the homicide on camera, but there was footage leading up to the homicide that was relevant where individuals were going at various locations.

00:50:36:17 – 00:50:58:10

And so they pulled ring camera from the neighborhood. They pulled a pull camera from a little bit away because the the individual, he he kind of left the scene initially changed clothing, came back and kind of was was walking through the neighborhood, kind of, you know, interacting outside of what’s that police called? Well, I’m not gonna it hasn’t gone to trial yet, so I’m not going to say so.

00:50:58:11 – 00:51:25:02

And obviously I’ve left that office now. But what they can do is they can take all this footage if they in a case like that, where they can have footage from all these different locations, they can go to various entities out there like McLaughlin and some others, and they can stitch that stuff together in such a way that’s really compelling for a jury, because what we did in that case was we had we took the video from the actual establishment, which kind of caught everything.

00:51:25:02 – 00:51:43:08

And at various points there would be something that’s happening on that video on the sidewalk that you can see, but somebody taking a cell phone camera simultaneously. And so as those those footage, as that footage lines up both footage, the video screen side by side, and then the one would go away and now you’re just looking at the one getting different angles.

00:51:43:09 – 00:52:01:26

And then when the homicide itself happened, the the businesses camera didn’t catch the audio, but a ring camera couple doors down did. So that audio and video was looped in and edited in. And so you’re watching it happen. You can hear the like there’s all this footage that’s coming up and it’s showing you the overall timeline with AI.

00:52:01:27 – 00:52:20:10

Now, the stitching together of these videos is actually not that complicated right now, because AI can, in real time, put a lot of that stuff together pretty seamlessly. And it’s great. Juries love that. They love video. And so like, they can they can take a lot of footage and that’s what they’re doing. When they canvass the site, they’re going to pull everything, whether it’s relevant or not.

00:52:20:11 – 00:52:42:02

Yeah. And then the stuff that’s relevant, they can do a lot of cool stuff with it, and it can really hurt your case, and it can all but remove identity as an issue sometimes. Right. And let’s not forget, guys, that almost every camera now has pretty good night vision. I mean, I know the security cameras we have here at the law firm, like it’s got night vision that you can zoom in on somebody and see, like Justin was saying, a debit card, right?

00:52:42:03 – 00:53:01:17

Like that close. You know, the night vision on a lot of these cameras can literally turn a nighttime scene into daytime. Yeah, in real time. I have dash cams on my vehicles and they have pretty good night night vision. I mean, I recommend people get dash cams on their vehicles, just even insurance purposes. Windshield. Yeah. Yeah, well, that’s a separate story, but.

00:53:01:19 – 00:53:23:05

All right. Well, hey, Ashley, I want to cut over to you real quick. Talk a little bit about cell phone evidence, okay? Absolutely. Let’s talk about cell phone evidence, because that’s kind of a lot of ways people get identified as through their cell phone and locations and things like that. So tell me a little bit about what law enforcement’s doing to tie in, like cell phone related evidence to identifying a suspect.

00:53:23:07 – 00:53:53:15

Yeah. So I think I’ll start kind of with how they go about that. Certain data location data, cell phone data has to come through a court order or a search warrant. You know, you have to think when you have a cell phone on you, especially nowadays, and you have a smartphone, which almost everybody does, or even not a smartphone, you can have a Pablo Escobar flip phone every time you drive past a cell phone tower.

00:53:53:15 – 00:54:15:16

It’s pinging. Oh yeah. And it could be, you know, pretty close. It could be pretty far. If you have a smartphone with Bluetooth, Wi-Fi and you have, like, your Wi-Fi to auto connect. I’ve seen that in cases before where you know, someone’s fleeing the scene of a crime and their cell phones connecting to a bunch of different Wi-Fi around the location and all those Wi-Fi locations and all those cell phone locations are noted.

00:54:15:17 – 00:54:37:04

Yes. And it’s like Tim was saying earlier about, you know, putting together video. You can literally put together cell phone and Wi-Fi connects and show someone’s path, you know, and we see that actually somewhat frequently. I mean, I can give you an example, actually, of a case I had. It was a guy who had committed four bank robberies.

00:54:37:07 – 00:55:03:05

I think two were in one day and two were in the other, if I’m recalling this correctly. But four separate banks. Okay. And he they were all within like a 3 to 5 mile radius of each other, something like that. You know, different banks though, PNC, Wells Fargo, traditions, whatever it was here in the area. And what they ended up doing is the prosecution got all these cell phone pings for this guy, and you could literally track him from bank to bank.

00:55:03:05 – 00:55:17:20

And it was also different cell phone towers. Now, I’m going to be clear here, like the cell phone ping itself does not give you the exact location. No it doesn’t. It gives you an area and pull GPS data from. They can do they can take it further. And we’re going to get into that as part of this too.

00:55:17:20 – 00:55:34:11

But right now at this point, they didn’t have that. In this case they were just pulling the pings. But the pings were good enough to show this guy traveled in a general area from here to here to here. Oh, and let’s look at let’s overlay that now with the the bank map, the map of the banks and oh, boom boom.

00:55:34:11 – 00:55:58:29

And all of its on its all time. So it’s all like the right times when the bank robberies were committed and it was such damning evidence, you know, that, you know, it was really, really led to his conviction. Yeah. The other thing that I thought was interesting, talking just about identity issues, in that case that came up, is even though this was over, I think it was two days he was wearing literally the same clothing, but he did have like a mask, sunglasses.

00:55:58:29 – 00:56:19:09

I think he even had like a mustache at the time where he, you know, it was he was trying to mask his identity. Right. And but it was the same damn close, you know, so they like, had people that do these things. Don’t think about that. Yeah. And it’s like the case that you were talking about like they did a search warrant, they went to his house, they found the same clothing.

00:56:19:09 – 00:56:37:11

And then, you know, he’s up there being like, this wasn’t me. You can’t prove it’s me. And it’s like, dude, they got your clothes. That’s you in the video. The video was grainy because again, bank video is not very good. It was a little grainy and that was actually one of the best defenses that we had. But at the end of the day, they had the same clothing on him and they had the cell phone data and everything.

00:56:37:11 – 00:57:01:01

And it was it was an easy conviction, I think, for that and that cell phone data, I had a case. It was technically a burglary. Guy went robbed his, you know, place of employment after hours. The cell phone data showed it pinging and they pulled a bunch. Not not a ton, you know, enough that it wasn’t an issue, but it would show this guy basically went from his house in the morning to work during the day, back to his house at night for for weeks, right.

00:57:01:02 – 00:57:20:02

3 or 4 weeks. They had this. That’s the only place he was really going. Maybe he went to like the grocery store once or twice. But then on the night of the burglary, it pinged from his house to his place of employment in the middle of the night, which had never happened before. So there was that. They also did the geofencing, and there’s a couple stages to that.

00:57:20:03 – 00:57:39:04

I mean, that could probably be four episodes in and of itself, and I don’t even understand it fully. Right. We wouldn’t need an expert for that one. But essentially what happens is they do they get Google data for a very limited area, and they’ll pull all of the users or phones that that ping in that area are pink to like a Wi-Fi or something.

00:57:39:04 – 00:58:00:02

And then they get it’s called like an Emy number. There’s there’s certain identifiers for, for phones and different phone numbers, etc.. And then they cut it down even further. And when they cut it down even further, there were it went from I think 30 to 4 for the stage, two for possible individual. Yeah, for possible individuals. And the only one that was like inside of the building was this guy’s phone.

00:58:00:04 – 00:58:16:08

Yeah. So yeah, I mean, dude, cell phones this day and age and we’re going to get into it in a moment. How they can lead to social media mishaps that can lead to convictions. Media. Yep. Yeah, that’s a big one. But literally just I mean, who goes anywhere without their cell phone these days? I mean, dude, not giving you advice.

00:58:16:08 – 00:58:32:10

But if you’re going to commit a crime, don’t bring your cell phone with you. Like, really like it for GPS. Like I still needed to get around. Yeah I know. Yeah, yeah. You know, so true. But again, I mean, our cell phones are literally almost an appendage of our body. Yes. And it’s very easy for them to track you.

00:58:32:11 – 00:58:51:26

They’re literally we’re carrying around tracking devices is what we’re doing. Yeah. You know when it comes down to it. So okay. The other thing I see sometimes with the cell phone towers is we were talking about paying off of towers in some situations. And I think this is actually becoming a little more prevalent than it used to be.

00:58:51:28 – 00:59:13:04

They can actually triangulate a specific location if the towers themselves are triangular. Close enough. Yes. I’ve seen that to actually find an exact location. They can also dump the towers themselves, which is usually the starting process. What do you mean? Dump the tower like they can. They can dump all the devices out of the tower that connect to the tower within a certain amount of time.

00:59:13:07 – 00:59:38:23

If they don’t even determine which device it is exactly like if they’re if they’re not dealing with a known device, they can do a tower dump. And that’s generally how the geofence starts to is that they they have an person operating within a known geographic area. And so they can draw the fence, and then they start the process in different stages to go through, first anonymously, all the devices that are there and then unmasking the devices that they have probable cause to believe are involved.

00:59:38:23 – 00:59:51:20

And it goes on from there. But yeah, I mean, and they can also do this with your car, not just your phone. Oh that’s true. Yeah, they can do this. A lot of the same stuff is happening in your car. Your car has an inside number. I think now a lot of cars have SIM cards I think in there.

00:59:51:21 – 01:00:05:16

Yeah. You’re right about. And they can do it with Birla Data two, which is the brain of the car. They can it’s almost like to get away with a crime that day and age. You almost have to like, drive a vehicle that doesn’t have airbags and not have a cell phone. Yeah. Just go, go, go live in the woods and like, commit.

01:00:05:17 – 01:00:28:07

Yeah, it’s almost impossible nowadays with everything. But, you know, Clarence, you went to a good point there. I wanted to kind of touch on and this is a good segue into social media when you were talking about trying like an phone. Right. Social media is a lot of times how we identify ourselves in public in a public arena, but over our cell phones.

01:00:28:09 – 01:00:44:23

Right. So social media IDs that happen with frequent frequency, I think. And I’m going to give an example about a case I currently have this going on in, you know, can really lead to a proper identification and holds up in court now. So tell me about social media, how that plays into identity. Well, let’s start with email.

01:00:44:23 – 01:01:07:22

Even though it’s not on the list here. Statistically speaking, most people have a Gmail account, which is how geofence is work really for for that particular thing is they’re able to eventually whittle down and identify your Google account. And they can they can eventually get to a point where they can see all of the services that are attached to that Google account, which is to say, all the Google services you’re using that account for.

01:01:07:25 – 01:01:34:11

And depending on what the nexus is between the crime and each of those services, they may be able to actually access the content of some of those services. But it starts with identifying the device that was used in identifying the Google account if there is one. So your Google account, your Facebook accounts, your Instagrams, all those accounts can potentially be identified by serving warrants on these providers, turning over emails and information associated with those accounts as well.

01:01:34:14 – 01:01:52:22

That is going to help to identify, because let’s be real, in email, addresses are unique identifiers for each of us. You can only have one of a certain kind of address if you’re associated with that one address. That’s a step in in the direction of identifying you as being involved in some way. And a lot of people’s email addresses mirror their names, right?

01:01:52:23 – 01:02:19:10

I mean, not always, but sometimes they do. And the other thing even going beyond that is when you get to an email address and you’re serving these warrants on the companies and you’re getting the underlying information, I want you to think about when you established that email address years and years ago, you actually put in your real information, and that is what they’re getting when they serve search warrants on these companies to figure out who it’s tied to.

01:02:19:13 – 01:02:42:27

And, you know, frankly, in, you know, child pornography cases, which which we defend with some frequency here as well, they’re actually getting to people’s identity through their router and their IP addresses, which are also linked a lot of times to their physical address right where they live, and then their name, because they’re the ones paying for the Wi-Fi service to have in the house, which links to the IP address.

01:02:42:27 – 01:03:02:27

I had a case where that was used to, but there is a limitation on that because you may be able to get all the information off the router. But if you’re looking for a specific device, that account that connects to the router, most of our residential routers will only store the they’ll only keep in the bank the IP addresses for like the last ten devices that were connected to it.

01:03:02:27 – 01:03:29:15

So once an 11th device connects, the first device will get kicked off that log. So if they dump the router, they can pull IPS off of the router that are currently connected to it or that are currently in the bank of connected devices. But it’s a very small bank. Yeah. And I mean, I’m going to go here back over here to Derek, I want to talk a little bit about like when we’re dealing with these social media accounts.

01:03:29:16 – 01:03:53:28

I mean, people live on social media this day and age. Right. And what happens with these social media accounts is people are putting their lives out there. You know, they’re sometimes even diming themselves out completely in committing crimes. I mean, I’ll give you an example before I jump over to you here. I have a case right now. It’s a retail theft case where my client is an individual who has no prior record.

01:03:53:29 – 01:04:18:13

Right. He’s not known to law enforcement. He’s got no mugshot. He’s he’s not even from the state. Okay. So he’s not even got an in-state driver’s license photo, but he’s on this surveillance video committing a retail theft. And the question in the case came down to how do you identify it to my guy specifically? Well, what they did was they went to social media and they actually found another.

01:04:18:14 – 01:04:37:22

There was another individual involved in the retail theft. And through that individual, they went to his social media account and found my client in pictures with that guy, and then got to who he was and his specific name, because he’s in photos on the social media account and otherwise, had he not been in those photos, they probably never would have figured out who he was, you know?

01:04:37:23 – 01:05:18:11

But I do want to talk a little bit about like, how people do dime themselves out on social media a lot and what you’re really putting out there, if we could again, Derrick, tell me a little bit about that. Yeah. So I actually just recently had a guy come in and I think what we see both, you know, when we were prosecutors and it’s even more prevalent now is, you know, the younger generation will say, even though, you know, I’m not that old, but a lot of kids in, you know, teenagers are using Snapchat, Instagram, I guess, Facebook, to an extent, TikTok, Snapchat specifically stands out to me the amount of cases that I

01:05:18:13 – 01:05:45:02

tried as a prosecutor, where Snapchat was somehow involved and it tied into identifying someone because, like you said, let me cut in there Snapchat, tell people how Snapchat works because I don’t think everybody who watches our podcast knows exactly how Snapchat works, especially maybe some people who are the older generation. Right. So and it’s a very specific way that it works that actually sometimes can hurt you, hurt law enforcement, but also can help them.

01:05:45:02 – 01:06:08:21

So tell us how Snapchat works. The main idea behind Snapchat is that you can send pictures or videos for a specific amount of time, and then they disappear, right? Right. That’s that’s the kicker, right? The video is supposed to or the picture is supposed to disappear. So this is where a lot of people end up getting in trouble because while it’s supposed to disappear, you actually can screenshot it or you can record it on Snapchat.

01:06:08:22 – 01:06:29:25

Now, it does alert the other individual that you’re doing that or that you’ve taken a screenshot of that. But I’ll tell you, I have a case right now where an individual was getting Snapchats pictures that again, go away, but he was using another phone to record, and the other person on the Snapchat never knew that it was being recorded.

01:06:29:25 – 01:06:51:21

Right. But ultimately, when they got down to it and they served search warrants and they got the cell phone, they found these other phones where he was literally taking pictures of those snaps. So it’s very easy to get around those issues, you know. And so for me, I think, you know, the biggest one with the Snapchat and Instagram, like I, I can’t remember what type of crime was it might have been, I think it was a homicide that we were working on.

01:06:51:21 – 01:07:10:19

And, you know, you police and law enforcement use social media all the time. They’re surveilling that. You’d be stupid to think they’re not. And people are posting locations, right? Oh, yeah. Posting photos with a location. And we see this I think a lot in.

01:07:10:21 – 01:07:28:13

You know, the city where people are going to different parts of the city taking photos, you know, they’re holding, they have guns, they’re not supposed to have guns. And they’re posting it all over social media. Right? Like, I had a guy that I prosecuted for a person not to possess, where they were actually after his brother. They serve a search warrant, get his cell phone, pull up the cell phone.

01:07:28:14 – 01:07:55:17

There’s this kid with a gun in his hand, and it’s it’s time stamped. There’s a geolocation. And he ended up getting charged for that and, you know, went up state for, you know, 4 to 8 years, right. I think what you’re really talking about there is the metadata. Metadata. Metadata is what they’re looking. And the law enforcement has trained forensic professionals that work as law enforcement officers that are very, very good at extracting metadata from photographs.

01:07:55:17 – 01:08:16:22

And metadata gives you a lot of times location specifically like longitude and latitude of where this was taken or this photo was taken, it can sometimes give you it usually does give you the date and the time that the picture was taken. So they’re getting things that aren’t even visible in the photo, but informational. That gives them ways to solve these crimes.

01:08:16:22 – 01:08:31:14

A lot of times, you know, and I think especially now again, as like iPhones and the Android systems are getting more advanced with AI and etc. I’m pretty sure if you send a photo, like if I sent a photo from my cell phone to yours, you could access the metadata for that photo. Yeah, I think I think you can.

01:08:31:15 – 01:08:52:04

So, you know, technology is getting way more advanced than what ends up getting a lot of people in trouble is not only the social media, but, like you said, taking screenshots, saving them on their phones. At least get a search warrant for your phone. They’re going to get into that and they’re going to see it. All right. So yeah, you know I’ll tell you, man, cell phones having children, right.

01:08:52:05 – 01:09:16:16

Having children. Cell phones scare me a lot. And some of my children are a little bit older. Do have cell phones already. But seeing what we see day in and day out. Yeah, I have conversations with my children who have cell phones about how they can very, very easily get themselves in trouble merely by misusing their cell phone and they don’t realize they’re doing it, doing it.

01:09:16:16 – 01:09:16:26

Because,

01:09:16:28 – 01:09:39:27

guys, again, let’s be real about this. I think a lot of times when you think you’re in your house, you’re using your cell phone, that it’s private and it is absolutely not private. It might feel private because you might be inside your own home, but it is not a private situation. If you’re going to put that out on the internet or you’re going to even exchange just information or talk to somebody who is not physically in front of you.

01:09:39:27 – 01:10:00:15

And a lot of times you might not even realize it, but that’s being recorded. So maybe by the other individual. Right. So you need to be very careful when you’re using your cell phone and how you’re using it. Up until literally establishing this podcast, I didn’t even have social media at all. You know, I think I had LinkedIn, you know, which is a professional social media site, but I wasn’t very active on it.

01:10:00:16 – 01:10:17:14

Now we’re very active on it with our podcast here. But, you know, now we have TikTok, Instagram, LinkedIn, Facebook, you know, all that YouTube, Spotify, all that stuff that you know is out there. And but we’re really only posting, you know, shorts from our podcast, from our video and our podcast itself. Short plug follow

01:10:17:14 – 01:10:21:04

Kearney law pay on all social media like view subscribe.

01:10:21:05 – 01:10:51:13

Yeah that’s right, that’s right. Thanks. Appreciate that Clarence. Yeah it’s at Kearney Law PA that’s our our across all our social media TikTok Instagram YouTube Spotify. That’s where you can find us for all that stuff. Okay I want to jump over here David to you I want to talk just a little bit about, you know, how AI is now being deployed in social, not in social, also in social media, but more in facial recognition software and in identity and identifying suspects.

01:10:51:14 – 01:11:10:03

I mean, it is being I mean, we talk about how rapidly AI is expanding, right? And it is getting to the point where it’s actually being regularly used. And this is crazy how fast this has happened, because I think about a year ago, this wasn’t even happening. But we’re at the point now where they’re using it in real time law enforcement situations.

01:11:10:04 – 01:11:24:25

Tell me a little bit about AI and where it’s good and where it’s bad. Yeah, I mean, there’s definitely a group. There’s a movement out there that I think is seeking to put push back on some of this because, you know, if you’ve ever seen the show like Person of Interest. Yeah. If you haven’t seen it, you should watch it.

01:11:24:25 – 01:11:43:19

It’s a good show because it’s clearly a show that’s, you know, 20 years ahead of its time. So but but those are some of the questions. Right. Like does it. Is it something we really want to invite into our lives. You know these these flock security cameras and stuff like that. But there are pros and cons to this stuff.

01:11:43:20 – 01:12:12:27

There’s definitely cases that I’ve seen where facial recognition has been used effectively, fairly and has, I think, been accurate. There are definitely causes for people to be apprehensive about this technology, because the facial recognition technology is not perfect and it cannot always spot the like the ghost of what it sees, like it sees something that is not really there, or it’s connecting something that isn’t there.

01:12:12:29 – 01:12:37:11

And a lot of times it can it can connect people in and say that they’re a facial match when they’re not really all that close. We’ve seen that a couple of times. So it’s dangerous because if law enforcement relies too heavily on this and there’s a good example out there kind of on social media right now floating around where a guy was identified through AI facial recognition,

01:12:37:19 – 01:12:44:05

right, and lived across the country, and they actually went out, got a warrant and arrested him,

01:12:44:10 – 01:12:46:23

put him in jail, and he’s on video the whole time.

01:12:46:23 – 01:13:04:17

Like I said in the beginning of this podcast, it wasn’t me. I don’t even live out there. I’ve never even been there. Yeah, I think AI facial recognition is still a ways off, but facial recognition has existed for and actually, Levi, run that, run that side by side comparison if you can. Real quick. I want people to see this because it’s it’s pretty spot on, but it’s not perfect.

01:13:04:17 – 01:13:06:09

And I want folks to see that. So Levi

01:13:06:13 – 01:13:08:14

pitch that real quick here for our viewers.

01:13:08:16 – 01:13:12:26

All right. So again that one that example is a guy who spent

01:13:12:29 – 01:13:31:26

weeks in jail and has actually filed a lawsuit against law enforcement, and he’s going to recover because he was unlawfully detained off of this erroneous AI facial recognition identity. I guess it depends on if it’s if the way they did it was was reasonable or if it was like gross negligence or I guess I should say he’s definitely going to recover.

01:13:31:28 – 01:13:54:22

But there are like and and this brings us to an interesting point, because I said earlier that I’ve seen cases where facial recognition was used effectively. Now, I don’t know to what extent AI was involved in that because I think years ago, I mean, facial recognition has existed for a while, and I think it’s even existed long before our concept of AI got involved in facial recognition.

01:13:54:22 – 01:14:16:22

So like, like to use AI, like an AI bot to be involved in facial recognition is a relatively recent thing. But facial recognition technology has been around for a while. So I think there is a distinction between those two. And if you have an investigator who knows what they’re doing and who employs it properly, then it can be very effective.

01:14:16:23 – 01:14:38:09

So I think a lot of this facial recognition technology really does depend too, on who’s using it and how, how knowledgeable they are in the way that they’re using it, because a lot like if you just have a parole, a probation officer or not a probation, why did I, a patrol officer. Good one. Sorry, a patrol officer who is just plugging somebody into facial recognition software.

01:14:38:11 – 01:14:57:26

That result may not be all that good because they’re just kind of surface level plugging somebody in and they’re taking whatever it gives them back. And we’ve seen some cases require that they go deeper. They need to have some other like corroborating. Right. It’s not just oh, well, this is a clear match. An AI said it was. And they look alike and boom, that’s really not going to be enough.

01:14:57:26 – 01:15:25:21

And I think I think the law enforcement is kind of realize it. They’ve realized that they’re pretty good and out doing that the right way. And the same like Jaina, we talk about Jaina and see Penn, see Penn. They those databases can and they can do it through comparative technology, not just like an AI bot that’s saying, okay, I think these images are the same or they look alike, but the program itself, because the photos that it works with a lot of times are standardized photos.

01:15:25:21 – 01:15:49:06

And those standardized photos can be easily compared through software using facial features. And so the software, depending on how good the software is, that I think the software is another big part of whether it’s reputable or not. Yeah, no doubt when it comes to identification, another thing that comes up frequently in court and the science is great in this area is DNA and fingerprints.

01:15:49:07 – 01:16:12:13

Right. So we got to talk about DNA and fingerprints in an identification episode. So, Glenn, I want to jump over to you and just talk a little bit about, you know, the DNA and how that works and where it’s challenging and where it’s not, and then also fingerprints. Yeah. So I think a big misconception because of, you know, movies, TV shows, fingerprints are, you know, all over everything.

01:16:12:15 – 01:16:32:05

I mean, technically they are, but to get a fingerprint actually off of an item or from a crime scene, just it’s it’s not that common, right? It isn’t. It’s kind of a it’s really fingerprint is kind of going the way of Hollywood. You know, it’s we see it a lot in, you know, movies and things like that. But I wouldn’t say we see it a lot in real practice.

01:16:32:12 – 01:17:02:18

No, I think I had one case and I think the case is still pending trial, so I won’t really talk about it too much. But it was a bloody fingerprint, so it had something to actually it was on a window, right. Other than that DNA we see all the time. Yeah, DNA is a big one. DNA especially. I mean, I tried a lot of gun cases and handled, you know, decent amount of gun cases in the DA’s office and was always, you know, a big thing if it wasn’t found directly on the person, even if it was sometimes, you know, sometimes they sent it for DNA.

01:17:02:18 – 01:17:20:05

But DNA is huge. And I think when we think of DNA like just as a layperson, right. And we’re thinking of DNA, we’re thinking of like a rape case, right, where the person leaves DNA, right, in committing the crime. But honestly, we see it a ton in like, gun cases, like gun possession cases. Right. And we’re talking about touch DNA here.

01:17:20:06 – 01:17:43:13

Yes. This is where your skin cells, which have a ton of DNA in it, are somewhere on that gun. And they’re actually extracting that fairly easily now. Yes. And I think, you know, with guns, you have to think, you know, the, the grip of a pistol is usually not completely smooth. Right, right. And there’s little ridges everywhere. So if you’re dismantling a gun, loading a gun, your DNA is likely going to be on there.

01:17:43:16 – 01:18:15:24

I mean, they always say the experts, you know, really how it gets there and how much is there and how long it lasts depends on a million factors. And it does. But in my experience, the DNA experts that the state police lab have and who come to court and testify know their stuff. Oh yeah. And they are very easily able to break it down and explain the science behind it and what, you know, the numbers mean, because we’ll see, you know, different contributors and you know this, they don’t use percentages.

01:18:15:24 – 01:18:37:13

They use I forget what exactly. It’s a it’s like it’s like a financial. Yeah. It’s an exponential. So we’ll say, you know, it’s a hundred billion, trillion more times likely that this DNA originated from this person than, you know, any other person in the world or however they put it. But they’re able to break that science down and explain it to the jury in a way that they can understand.

01:18:37:13 – 01:18:57:18

And to in my opinion, it’s very damning evidence. And I think if we can say to this is another thing that’s a misconception people have, is that the DNA report does not say positive match. Yes. That’s not how it works. It says it’s, you know, one to the power of 400 times, you know, 50 or whatever times more likely.

01:18:57:18 – 01:19:14:10

A lot of times it’s way more than that. And I would always ask the experts like, okay, how many zeros is that? And they’d be like 87 zeros. You know, it’s accurate to the point of more people than exist in the world. Oh, right. By far. Yeah. You know, but they will never be able to tell you. It’s like so many percent accurate.

01:19:14:11 – 01:19:32:03

They can’t tell you that because and that’s where I think it becomes prone to attack is if you have really, really small numbers on that lab report, well then it’s very, very trace amounts of DNA. And there are lots of factors that may be confounding for that lab report it because it’s again, it’s not saying it was or wasn’t that person.

01:19:32:03 – 01:19:54:09

It’s just saying it’s this many times more likely to have been that person. I had a makeup, I had one where they found a gun, essentially in a bunch of bedsheets and clothing on like a dirty bed. And it was definitely, you know, a trace amount. But it did come, you know, they can they tied it to this guy, but it was like 100 million times more likely.

01:19:54:09 – 01:20:11:18

And when I talked to the expert, basically my question was, okay. It was found wrapped up in bed sheets and in clothes on a bed. Are you able to say that, you know, he would have touched this, or could it have come from, say, he, you know, slept in that bed or was in those clothes and they hadn’t washed anything in a week?

01:20:11:19 – 01:20:30:24

She’s like, I can’t say that. And I was like, well, that’s that’s not very good. Yeah. And the way, the way that a defense attorney is going to want to ask that question is, is this figure consistent with transfer DNA, something along those lines. And if that question comes out in my preps with DNA experts, they will say it can be consistent with transfer.

01:20:30:25 – 01:21:02:29

I really think guys that, you know, the way that DNA evidence is defensible is not to say that the science is wrong. It’s to say that the DNA, how the DNA got there could have been an innocent explanation. Correct. Or there’s probably a second, potentially. This is a far more complex defendant defense is if you get into a battle of the experts where you’re talking more about how was the DNA collected, how was it analyzed, what conclusions as a result of that analysis were drawn.

01:21:02:29 – 01:21:20:10

And sometimes you can get experts there that can either a cause enough confusion or doubt to a jury that they’ll disbelieve it or they’ll just count it, or b it’ll just fall apart, you know? So I think at the end of the day, you’re not going to go in there on a DNA case and just be like, you know, this is wrong science.

01:21:20:10 – 01:21:40:01

It’s not. Everybody acceptably, I think, knows now that it is. But you’re right. I mean, just having a lab report that says, well, you know, this this DNA makeup on this object is X amount of times more likely to have come from this person as a contributor. Or we can say to this degree that that person may have been a contributor of that DNA profile.

01:21:40:03 – 01:22:02:24

Even that does not explain how the DNA got there. Right? Right. So that like, that’s always an avenue of attack is how did it really get on that object? And I don’t think an expert could ever testify to that unless essentially you were like, I observed this person holding this item. Yeah. Or using this idea, which you’re pretty much always going to ask that question on cross, and they’re always going to say, I wouldn’t be able to answer.

01:22:02:24 – 01:22:22:01

I wouldn’t have any idea of how this DNA got there or or what this person could have done that would explain that DNA. Yeah. All right. Good. Well, I appreciate that a lot. There’s a case that is real life that happened called the guy was Daniel Holtzclaw. I was watching a video about this not recently, not too long ago.

01:22:22:01 – 01:22:47:09

And that dude, talk about an identity issue. That guy tried to present an identity issue to. And there were lots of facets of that case that ended up coming into play, like whether he had tattoos, whether he ever lived in the country, whether because he was alleged to have fled to another country, and then his DNA was recovered as well, I think from the from the rape victim or somebody like that is this is this if folks want to look this up, is this on Netflix?

01:22:47:15 – 01:23:08:11

I mean, you can look it up. The video I watched was on YouTube about it, but like, if you just look up the Daniel Holtzclaw case, that’s a case where there were identity issues that were presented and a jury convicted him, despite the fact that they tried to argue that it was misidentification. Okay. Another topic comes up a lot in identity defenses is alibi.

01:23:08:13 – 01:23:25:09

You know, can I get a witness? Alibi defenses. Right. So I want to jump over to you here just to talk a little bit about alibi defenses and kind of how they come into play. Yeah, absolutely. So alibi defenses, you do have to give notice of those, I forget. Is it within, like, 20 days or something like that?

01:23:25:10 – 01:23:40:01

It’s the time that for the omnibus. Okay. So 30 days after this is. Yeah. And this is just about how we give notice in court. And the prosecution fence has to give notice of using some sort of alibi. Always what I first think of. Yeah, but that’s not that interesting. So no, it is not, it is not know.

01:23:40:01 – 01:23:58:27

So essentially alibi is you’re going to claim that you were somewhere else or doing something else in a different location when the crime was actually with someone else or with someone else. So you could have, you know, an actual person that is a witness to say, hey, this, you know, this person was with me, or we were doing this at this time.

01:23:58:29 – 01:24:24:27

You could have video work, records clocking in and clocking out, purchase receipts, credit debit card transactions, phone records. And I mentioned this in one of our previous episodes. I think it might have been last week with the PFA first court hearing I did. Being here at the firm was a PFA hearing where this woman claimed that my client was outside of her house with a gun at.

01:24:24:28 – 01:24:44:16

It was like a Saturday night at 10:00, and he actually was out to eat with his mom and sister at a restaurant 45 miles away at the same date and time. And we had surveillance video and a receipt. So, you know, there are that’s a little bit different than a criminal case. Well, no, I just I remember when you had that case and we talked it through beforehand and you.

01:24:44:17 – 01:25:06:24

Yeah, you were you were presenting these things and you’re right. Like alibi isn’t always like, hey, I was over here with my mom. Like, it was like, obviously that can be disbelieved, right? Because your mom’s going to come in and say, yeah, he was with me. But if you actually have written proof, like a receipt or a clock in, clock out card from it being at work, it doesn’t always have to be an actual witness to say the witness itself could be the evidence.

01:25:06:25 – 01:25:40:24

It could be the time card. You know, absolutely something as simple as that. That can be alibi. Now, the other thing I see sometimes is alibi created through phone records. And we talked about that earlier. Right. And how that can be damning to a defendant, but also sometimes helpful. Yeah. I mean, and if you’ve got the pocketbook as a defense, a defendant to hire experts that can actually geo locate you or tower paying you or get this information, you can actually walk yourself out of a conviction by showing you weren’t even in the general area.

01:25:40:25 – 01:26:02:18

Absolutely. You know, and like you said, you meet we just talked about DNA and, you know, fingerprint and same thing with like the cell phone stuff. I mean, experts from the defense side are are expensive. And I think one of the biggest strengths any defense attorney can have is knowing how to use the Commonwealth’s expert to their advantage.

01:26:02:19 – 01:26:23:04

Yeah. Oh, yeah. So I know we turn the table on. And again this could be a topic for another episode, you know, cross-examination whatever. But like you said, you know, there’s there’s ways to attack expert testimony in really any case, it’s just figuring out what that avenue is. And again, in some cases, you’re you’re really not going to have a lot to cross-examine them on.

01:26:23:04 – 01:26:53:09

But if you can find the right piece, it could be very, very important. Yeah. All right. Well good. Well hopefully those of you that watched learned a lot during our episode here on identifications, how they’re formed, how they’re made, how they can be attacked and how they’re sometimes, susceptible to significant bias and use in court to our client’s advantage as defense attorneys.

01:26:53:11 – 01:27:01:11

So again, guys, this is the the Kearny law. Now we defend podcasts. We appreciate you watching. Have a good day, partner.