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Improper and Prejudicial Photo Identification

In every case I have ever seen or been involved in where identification of the dog is an issue, it has been done improperly.  After receiving a description or descriptions of a dog, they find the dog they think it must be, take its picture, and ask the victim "Is this the dog?"

There is no attempt at fairness.  There is no attempt to have a proper photo line up.  There is no warning that the dog involved may not be shown.  The victim is shown one photo, and asked if that is the dog that was involved.  In criminal law, there are requirements for a photo lineup. There must be similar individuals.  You cannot show all white people and one black person if the perpetrator is alleged to be black. You cannot say that the perpetrator is definitely contained in the photo line up.  These are due process rights that have evolved over years of experience with bad eyewitness identifications.

Yet in every dangerous dog case, identifications are made from one photo.  I have not seen a reported case where such an identification has even been challenged. 

It is clear to me, that most people would have a very hard time specifically identifying dogs within the same breed. I think animal control knows this, and is quite content to have a one photo lineup. 

If you are lucky enough to get a case before a photo identification is made, I would not allow my client to participate until the same safeguards used in criminal law are used by animal control. If an improper photo lineup has been used, I would object to it. 

And if you are forced to trial in such a case, I would bring in a dog that looked liked the one involved in the case (but is not the dog involved in the case), and ask the victim to identify it. It is possible the judge would not allow the dog to attend (in some jurisdictions, the dog is specifically excluded from trial).  In that case, take dogs of the same breed or likeness, create a proper photo lineup, and see if the victim can identify the correct dog. If not, move for dismissal.

You've got to use common sense though.  If you own a great dane, for example, and it is the only one within miles of the incident. it is unlikely that the above tactics would help.  You've got to know the dogs in the neighborhood and surrounding area.  If there are dogs nearby that look like the one involved, you have a better chance of sucess.

More on the criminal case law requirements will be posted shortly.